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.

Other examples include false positives at drug screening labs (like the ones discussed here and here), and misconduct by lab employees (like former chemist Phillip Mills).

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.

19 Responses to “Troubling – but really not that troubling – study results from the armed forces drug screening programs”

  1. Nathan Freeburg says:

    First off (in my rather extensive anecdotal experience) the percentage of urinalysis hots without any other corroboration is vastly higher than 10%.
    Second, this is part of the basic problem we have in criminal courts of giving way too much weight to anything with the imprimatur of “science” (I have nothing against STEM btw, far from it, but in general forensic narratives are far from being “hard science”.)

  2. Philip D. Cave says:

    FYI, Nathan just got a case dismissed (and pending adsep) this week on the basis of this information.  Seems the client was one of the few.  Big picture, this may not be huge, for the individual client its everything.

  3. Concerned Defender says:

    Big picture, not huge.  On the individual level, life changing.  Given the seriousness and severity of consequences, the .mil really should do a double blind test or require two samples for confirmation purposes, testing only the second totally separate sample if necessary.  The added cost is nil.  Take two urine samples, and ship them separately. Or take a urine and hair sample, and test the hair only if necessary, etc.  
    Surely everyone here knows about the famous appellate vacating/ reversal for Doctor Major Smith, wrongly convicted of a positive cocaine UA.
    https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=4742

    Smith’s defense attorney tried to show that the urine sample must have been contaminated during the testing process—the testing was done in a temporary facility because the air conditioning at the toxicology lab was being repaired. On September 28, 2012, the military jury convicted Smith. He was sentenced to two years in prison and loss of all pay and benefits.
    On May 15, 2013, Smith’s sentence was commuted by the military and he was released from prison. Smith took and passed a polygraph examination. In 2014, Smith filed a motion to vacate his conviction on the ground that his trial attorney’s failure to take the correct steps to admit the follicle test results into evidence denied him a fair trial. In addition, Smith claimed that his defense attorney had also failed to call a witness who would have corroborated Smith’s testimony that he voluntarily submitted the urine sample. After the motion was filed, Smith obtained an independent DNA test of the urine sample which identified two separate DNA profiles—his and that of an unidentified male.
    On July 17, 2015, the U.S. Army Court of Criminal Appeals vacated Smith’s conviction and ordered a new trial. The decision did not mention the DNA test results, but held that Smith’s attorney failed to provide an adequate legal defense. The court concluded that Smith’s lawyer’s “failure to properly investigate and evaluate the validity, strength and relevance of the hair follicle test…was unreasonable under prevailing professional norms….This was exculpatory evidence that, if admitted as substantive evidence, would have enhanced the defense…”
    The appeals court also held that Smith’s lawyer should have called the witness who would have corroborated Smith’s testimony that he submitted the urine sample voluntarily and that the failure to call the witness “was not reasonable.”
     
    On September 2, 2015, the prosecution dismissed the case.

  4. Zachary D Spilman says:

    First off (in my rather extensive anecdotal experience) the percentage of urinalysis hots without any other corroboration is vastly higher than 10%.

    I won’t argue with you Nathan, but I do want to pull the thread. When I talk about just a urinalysis, I mean a case with no admissions, no other evidence, and no acceptance of responsibility (so no Article 15 and no board waiver).  

    You see that at a rate vastly higher than 10% of all positive results (considering that many positive results – the ones with an admission, other evidence, Article 15, and a board waiver – don’t generally come to the attention of people like us)?

  5. Concerned Defender says:

    I’ll add that as someone who has never used drugs, I saw enough clients who claimed false positives that it seemed like these were routine enough to cause concern for non-drug users like myself to give UA samples.  I’m not naive to believe nobody had a legit positive, but with sufficient numbers of clients who were very compelling in their denials, it was alarming. 
    I was always nervous given the immediate and nearly irreversible consequences of a false positive.  Once accused, it’s very hard to un-ring that bell and your reputation is ruined.

  6. Zachary D Spilman says:

    Nothing new there, Concerned Defender.

    ”It’s a cruel thing they did to me,” Mr. Donovan said as he left the courthouse in the South Bronx with his arm wrapped around his wife, Catherine, as they prepared to return to their home in Short Hills, N.J.

    ”After two and half years, this nightmare is behind us,” the 56-year-old Mr. Donovan said earlier in an impromptu news conference in the corridor just outside the courtroom. ”The jury has reawakened my faith in our system of justice. It was shattered here for nine months.

    ”The question is, should this indictment have ever been brought? Which office do I go to to get my reputation back? Who will reimburse my company for the economic jail it has been in for two and a half years?’

    https://www.nytimes.com/1987/05/26/nyregion/donovan-cleared-of-fraud-charges-by-jury-in-bronx.html

  7. Isaac Kennen says:

    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.

     
    I don’t know that I agree that we need to – or even should – discard cases where there is other evidence of drug use aside from the urinalysis. Forensic evidence is always going to be among the more persuasive evidence in a case. For example, most cases that involve eye-witness testimony of drug use involve eye witnesses who have motive to misrepresent on account of the fact that they were themselves engaged in misconduct. Possession does not necessarily suggest use. It could suggest distribution, for example. Or it could suggest an intent to use in the future that has not yet come to fruition.No, I think the centerpiece of any drug case is almost always going to be the forensic evidence. The most persuasive witness in many such cases will be the drug testing laboratory expert. That expert’s opinion, derived from a likely poorly explained process aided by its’ suitably arcane name – gas chromatography/mass spectrometry – lends an air of certainty to what may otherwise appear to be a parade of credibility-impaired drug-abusing witnesses. If that expert opinion is diminished, then whatever the rest of the evidence might show, I think the government’s case has been dealt a heavy blow. 
     

  8. Alfonso Decimo says:

    Has someone done an article or a study of all the DOD drug lab scandals of the past 30 years? In my time, I can anecdotally remember several Navy Drug Lab stories of misbehavior and negligence by employees. I would guess that a thorough study would seriously undermine the credibility of these tests. The author of such a study might be a useful expert defense witness.

  9. Joe says:

    Here is a novel idea, put each sample container in a sealable plastic bag, instead of putting all of the samples in the same ‘trash’ bag.  I will only charge a small fee for my studies into the solution to this calamitous problem. 

  10. Troubled says:

    So when I crunch the numbers in the Navy study, 4 out of 20 “normally tightened” bottles had false positives when exposed to the leaked control sample.  When the actual source of contamination has insufficient volume to test, this can present as a batch with only 1 positive–which is actually a false positive.  See Batch A.
    As someone who previously oversaw a urinalysis program at a Navy command, this troubles me.  I was aware of boxes that leaked in transit, but I couldn’t tell you what those error codes were.  I certainly would not have thought that an untestable empty bottle could cause 1 false positive without impacting the other bottles in the batch.
    (That said, in the 2 years I was with the program, we only had person who went to an ADSEP board claiming unknowing/innocent ingestion.  Stellar Sailor.  ADSEP Board found no misconduct.  Easily could have gone the other way if not for years of perfect service.)

  11. Dew_Process says:

    Maybe they should call the FWA Hotline!  Seems to me that the underlying problem is sample bottles that don’t seal properly!

  12. Eric Smith says:

     
    Hi, this is Eric Smith here.  I think the argument that false-positives are rare is valid and probably accurate.  But rare, doesn’t mean impossible.  Black swan events do happen.  The question that remains for me is how to prevent the tunnel vision assumption among commanders and prosecutors that the urine drug screens are infallible?  Because my case proves they aren’t.
    The most troubling part of my case for me was the utter refusal of DoD forensic scientists and toxicologists to consider that something was awry after I produced multiple pieces of evidence that should have raised doubt in their minds and didn’t.  The hair follicle test, then a lie detector test (no deception), then a retest showed an increase in the BZE levels (that isn’t published much, because it is very technical to explain why that is significant – the BZE levels should have gone down in cold storage, not up), and then the DNA evidence with two MAJOR donors at a 60:40 distribution.  
    I personally pleaded to officials at MEDCOM, CID, AFME and DoD to investigate.  I was completely ignored.  One scientist went so far as to say, “Look buddy, how hard do you wanna shake this tree?  No one is going to stick their neck out for you in a drawdown.  Do you get it?  No one wants to hear from you.”  That was a reality check, for sure.  It was clear where his concerns were.  As far as these scientists were concerned, the tests were infallible and there was no room for error.
    In my experience as a physician, lab errors occur all the time.  That is why we re-test.
    The inability of anyone to consider the likelihood of a mistake, an error, or a rare outcome was nearly insurmountable.  I also asked MEDCOM to investigate.  They refused.  
    To this day MEDCOM refuses to reinstate my medical credentials and void a report the NPDB.  The content in that report has been proven to be false.  I have been able to return to work and be productive, but I fear many options are limited.
    So Concerned Defender is right.  These are lifelong consequences due to either error or malfeasance.  So, it is always worth adding checks to the system.
    Another thing. I am still subject to urine drug screens in my profession.  A split sample is a standard. 

  13. Philip D. Cave says:

    AD, Yes there have been many instances over the years and we’ve litigated them– one of the issues has often been getting the discovery.  A study could be very interesting, but don’t look for the gubmint to do that.
    Here’s a case some might like to read with Eric’s comments.
    United States v. Mahoney, 58 M.J. 346 (C.A.A.F. 2003).  This involves the infamous “Mobley letter,” it’s an interesting read because it was not limited to Mobley but the other Lab experts as well.  The letter is relevant to “shaking the tree.”  We litigated this issue for a while just as we litigated the false positive at Brooks referenced in United States v. Jackson, 59 M.J. 330
    Check out Sebring, 44 MJ 805; the Hatziz problems reflected in Israel 60 MJ 485.
     
    The biggest issue remains the failure of the labs (and TC) to timely provide, and at times actively resist, discovery of problems.  Remember USACIL?  Examiner falsifies reports over a period–no Brady notice.  He’s retrained and sent back to work–and does it again–then we get the Brady notice.
     
     

  14. Eric Smith says:

    You know – my discovery request was quite detailed.  It was extracted from a National Lawyers Guild checklist.  Sadly, the military judge denied most of it saying it was “overbroad.”  However, Mr. Cave’s comments above, the recent news stories, and the outcome of my case lead me to believe that one could argue that it is no longer overbroad and many of the items are in fact relevant.  And it could help shake that tree.
    Would it be useful to share my discovery request and the governments’ response with those of you defending these cases?  I could send it to Mr. Spilman if he is willing to distribute.

  15. Philip D. Cave says:

    Eric, we’d love to have the discovery request.  One of the things lawyers are good at it using other people’s work (with proper attribution of course).  That’s what networking and sharing is all about.
    You can send it here if you want mljucmj@court-martial.com.  We have place to put it.

  16. Defense Wizard says:

    I have had more than one Commander tell me that if the report comes back positive, it would be nearly impossible to convince them that their Soldier had not done drugs. To many, the results are ironclad, and I think psychologically, for the Commanders, they have to be. This slip of paper that can end a career, so there is an assumption there that because it wields so much power, it must therefore be infallible. With regards to Eric Smith’s case, and his pleas to investigate, there is only so much you can push the Army to do. Requesting a DNA test, before Mr. Smith’s case, isn’t something most Soldiers are able to have done.

  17. Charlie Gittins says:

    DW:  The good news is that DNA testing is becoming less expensive by the day.  Officers and senior enlisted can probably afford to have he testing done to determine whether the accused is the donor of the sample and whether there may be more than one DNA donor.  Of course, that begs the question whether you can get the lab to send a portion of the sample to a separate lab or whether a military judge concerned with “metrics” would permit a sufficient delay to get it done. 
     

  18. Philip D. Cave says:

    Some years ago I had a female client who could afford the DNA testing.  The result–a combination of her and male DNA.  The government’s defense was–there must have been contamination at the lab.  Keep in mind we’ve Brady notices of lab employees who are druggies.  However, it did help that the sample had been kept for a week with little security at the unit and the sample contained a positive from another male.  All worked out for the good.

  19. Concerned Defender says:

    In the aggregate, it would be far less expensive while also furthering justice if a secondary DNA test was automatic in all drug screenings.  The benefits to all parties would far outweigh the trivial costs.  Collect a DNA (hair?) sample or other DNA contemporaneous to the urine, send them both as a singular unit.  If the UA is negative, destroy the samples.  If it’s positive, run a confirmation check. 
    Taking just Major Smith’s case, I wonder what the total cost to the government that prosecution, appeal, etc. cost.  $100,000?  1/2 million dollars?  And, assuming he is innocent, what was the cost to him and his life?  Incalculable.   Conversely, running a DNA test for drugs might cost the government, what, $100.  $1000?   Online hair follicle testing quotes are south of $500 for a 5 or 10 panel test.  On an “as needed” basis…  to stop wasting government lawyer and commanders valuable time, and get more solid prosecution cases and exonerate the innocent this is a no-brainer.
    It would seem to me that it is incumbent for the prosecution to seek justice, not prosecutions.  In doing so, the prosecutors should SEEK exonerating evidence and demand a DNA sample.  What good prosecutor wants to destroy an innocent person???

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