Troubling – but really not that troubling – study results from the armed forces drug screening programs
A reader forwarded me this Brady notice from the General Counsel of the Department of Defense, along with this Air Force Drug Testing Laboratory study and this Naval Drug Screening Laboratory study.
The bottom line is that the laboratories determined that under certain circumstances a leaking bottle in a box of urinalysis tests can contaminate other bottles in the same box, leading to false positive results.
At first glance, this might look like a serious problem for the armed forces drug screen program (that relies on urinalysis). According to this Military Times story, the DoD seems to be panicking. But a closer analysis shows that this is just the latest in a series of small developments that reveal the limitations of forensic evidence.
The two new studies from the Air Force and Naval laboratories may tend to reduce the weight of urinalysis evidence to prove illegal drug use, but they will have a very limited practical application.
The studies tested what happens when spiked urine in a sample container with a loose cap is shipped in a box with clean urine in sample containers with both loose and tight caps. The result was cross-contamination of the spiked urine into the clean urine, and false positive results. But the result was also a mess, with urine spilling out of the spiked sample container with the loose top and into the box (that is bagged in plastic for shipment), wetting the other bottles.
That mess is (or, at least, is supposed to be – but I’ll come back to that) reported as a discrepancy using a code. In the Air Force the discrepancy code for a box with a leaking sample is BY (for “bottle discrepancy – not tested”) or PY (for “package – discrepancy – not tested”). See AFI90-507 (2014). In the other services the code is BZ (for “bottle discrepancy – tested). These codes are standardized. See ASD(HA) memo here.
As is obvious from those codes, the Air Force labs don’t test samples in a box with a leaking sample, while the Army and Navy labs do test such samples (this is a general rule; DoDI 1010.16 makes each lab responsible for assigning discrepancy codes, and only certain codes stop testing). A proposal to change that policy – and have the Air Force test samples in a box with a leaking sample – is what prompted the studies.
This reveals the first big limitation of the studies: they only apply to boxes with discrepancy codes BY/PY and BZ (and the BY/PY samples aren’t tested). It’s possible, of course, to have a shipment where a sample leaked and the discrepancy code wasn’t applied, but that assumes that the lab doesn’t follow the procedures (and once you make that assumption, you might as well ignore all lab results).
But there’s an even bigger caveat: very few discharges involve just a urinalysis.
The most recent statistical analysis for DoD drug testing I can find online is from 2011 (available here), and it reports that “in FY 2011, DoD attained a drug positive rate of 0.97 percent, the lowest positive rate in the history of the [drug testing program].” Report at 8. But, of course, not all of those positive results involved leaking samples. I’m not aware of a report that tabulated the number of BZ discrepancies (forget BY/PY, because they’re not tested), but I think it’s safe to say that it’s low. Very low. Generally – and I say this from experience – service members do a pretty good job of tightening the cap on their urine sample.
So our starting point for the real-world impact of the leaking bottles studies is way less than 1% of the force. From that we need to subtract cases involving other evidence of drug use, like eye-witnesses, possession of the controlled substance, or an admission (including an admission during administrative or judicial proceedings). If there’s other evidence of drug use, then the urinalysis (tainted or not) is more corroborative than conclusive. And – anecdotally – I can say that most, if not the vast majority of military drug cases involve more than just the urinalysis. Rightly so, because a positive urinalysis alone really doesn’t prove much. It doesn’t prove, for example, that the person felt the effects of the drug (or even knew they’d been exposed to it).
So if we start with just the cases involving positive urinalysis results (less than 1% of the force), and from that take just the cases involving BZ discrepancy codes (let’s put that at 5%, though I think in reality it is much less), and from that take just the cases where the only evidence is the urinalysis and the service member makes no admissions and fights the allegation (call it 10% of all cases), we end up with a population that is .005% of the force.
That’s hardly something that can’t be handled on a case-by-case basis, both in the future and looking back.
But if we’re looking back, there’s another limiting factor. If the case went to court-martial, Article 73 puts a two-year time limit (raised to three years in the MJA) on a petition for a new trial based on new evidence. And that time limit is strictly enforced. See Roberts v. United States, 77 M.J. 615 (A. Ct. Crim. App. 2018) (analyzed here), aff’d __ M.J. __ (C.A.A.F. May 7, 2018) (summ. disp.).
It’s simply unsurprising to learn that a leaking urine sample can contaminate other samples shipped in the same box. What will be surprising is if there’s a meaningful number of cases where these studies really matter.