In its published opinion in United States v. Caporale, the AFCCA sees the difference between drinking coffee and “getting high”
In a published opinion, the Air Force CCA affirmed a conditional plea of guilty of violation of Air Force Instruction (API) 44-121, Alcohol and Drug Abuse Prevention and Treatment (ADAPT) Program, for the appellant’s use of an amphetamine-like substance called “FA,” rejecting the appellant’s argument that the regulation is void for vagueness. United States v. Caporale, No. S32116 73 M.J. 501 (A.F.Ct.Crim.App. Dec. 16, 2013) (link to slip op.).
The order prohibited “the knowing use of any intoxicating substance, other than the lawful use of alcohol or tobacco products, that is inhaled, injected, consumed, or introduced into the body in any manner to alter mood or function.” Slip op. at 4. The court noted that it has previously upheld this language as lawful. Slip op. at 2 N.1. But the appellant argued:
that the regulation is “void for vagueness” because the term “intoxicating substance” is not defined and because many legal substances may alter mood or function. The appellant attempts to prove his argument by averring that a servicemember who drinks a cup of coffee to stay alert is violating the regulation as he is consuming a substance to alter his mood or function.
Slip op. at 4. Why stop at coffee? Love and oxygen can get you high. Some people find good food to be euphoric. And what about intoxication from consumption of the often-misused and totally-legal Dihydrogen Monoxide?
The appellant “had previously been convicted at a special court-martial of the wrongful possession of psilocybin mushrooms and the wrongful use of marijuana in violation of Article 112a.” Slip op. at 3. Obviously brain-damaged from these drugs, the appellant tried “FA” because he was told that it was not detectable on a drug test, leading to the conditional guilty plea that was the subject of this appeal. Appellant’s choice of intoxicants was the sort of suicidal idiocy that sends many service members to the hospital (or the madhouse) for using substances like “spice” and “bath salts,” which are marketed as synthetic versions of marijuana and cocaine but are really just an uncertain blend of chemicals in packaging that warns against human consumption. The appellant’s attempt to equate use of these poisons to get high to the consumption coffee is disturbing.
The CCA rejected the appellant’s argument in a number of common sense ways. It found that, “While an ‘intoxicating substance’ is not defined, the term ‘intoxication’ is sufficiently defined. There is an underlying awareness that intoxication and impairment can adversely impact duty performance.” Slip op. at 5 (marks and citation omitted). The court also noted that, “‘Glue sniffing,’ which involves the misuse of an otherwise legal substance when it includes either actual intoxication or the use with the intent to become intoxicated, has long been upheld as a valid military offense.” Id. And the court explained that:
Even a regulation that is facially vague or overly-broad may be constitutionally sound when a mens rea requirement is read into it. . . . When reading the terms and the paragraph together, it is obvious that the use of an otherwise innocent substance is prohibited only when done with an intent to alter mood or function such as to cause intoxication. We see no reasonable reading of this regulation that would equate consuming a morning cup of coffee, an energy drink during mid-shift, or cough and cold medication when one is ill as meeting the scienter requirement because none of these activities would have been undertaken with the intent to alter mood or function as to cause intoxication within the definitions of AFI 44-121.
Slip op. at 6 (emphasis in original).