Accidental ingestion defense; innocent ingestion; article 112a UCMJ

Both the Army and the Navy sent out a Brady notice recently regarding the possibility that Poppy Seed ingestion could cause a person to test positive for Codeine during urinalysis. This notice could assist a defendant in an accidental ingestion defense to Article 112a UCMJ. This notice was sent out following a determination by the DoD Office of Drug Demand Reduction (ODDR) that the ingestion of certain legally purchased food products could, in some circumstances, result in a positive urinalysis for codeine. On 19 January 2023 the ODDR temporarily suspended reporting of codeine results on all urinalyses processed at Department of Defense Forensic Toxicology Drug Testing Laboratories and suspended the destruction of urine specimens previously reported as a codeine positive. Both the Army and the Navy said the ODDR and the Services will identify affected service members with a previously reported positive codeine urinalysis, consistent with poppy seed ingestion, for any appropriate remedial actions.

Concerns about poppy seeds not new

These concerns about poppy seed contaminated with morphine and codeine are not new. Papaver somniferum (commonly known as opium poppy) is the plant that produces poppy seeds. It also also produces the opium latex that contains morphine, codeine and thebaine. Poppy seeds by themselves do not contain opiates, but the harvesting process concurrent with the opium latex can contaminate the poppy. There is lots of documentation that poppy seed consumption can produce a positive drug test result for opiates.

What is the Brady Rule?

The Brady rule, named after Brady v. Maryland, 373 U.S. 83 (1963), requires prosecutors to disclose materially exculpatory evidence in the government’s possession to the defense. A “Brady material” or evidence the prosecutor is required to disclose under this rule includes any evidence favorable to the accused–evidence that goes towards negating a defendant’s guilt, that would reduce a defendant’s potential sentence, or evidence going to the credibility of a witness. This Brady rule evidence might assist a defendant with an accidental ingestion defense to Article 112a UCMJ.

This isn’t the first time the military has had to issue a Brady Notice. USACIL had some problems with faulty data in the past leading to the requiring disclosure of potentially exculpatory evidence. As an example in 2005 USACIL issued a memorandum to all staff judge advocates stating that Phillip Mills, a USACIL forensic examiner, was disciplined after it had been discovered that Mills had cross-contaminated and/or switched samples within and between several cases, made a false data entry and altered documentary evidence, falsely stated the results of an examination which he had not performed, and misrepresented work he had performed (Crim. App. No. NMCCA 200000481). The Army also issued a Brady Notice in 2016 for labeling errors in the USACIL laboratory and on the FBI releasing data regarding DNA reporting and regarding hair testing.

Drug Test Errors

Drug testing does sometime result in errors whether a false positive or mislabeling. There are also defenses for accidental ingestion. The guidance regarding Article 112a UCMJ states “The accused may not be convicted of the use of a controlled substance if the accused did not know (he) (she) was using the substance. The accused’s use of the controlled substance must be knowing and conscious.” The key is convincing the commander or the panel that your case is a case of accidental ingestion. If you are facing charges of Article 112a UCMJ, call and consult with our attorney today about your case to see if you might have an accidental ingestion defense to Article 112a UCMJ.