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Ask the Lawyer: Sniffing legal substances is still against rules

Apr. 9, 2014 - 03:58PM   |  
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Q. Can the military punish service members for getting high off legal substances?

A. Just because products that are innocuous when used appropriately, such as glue, gasoline and nail polish remover, are not designated as controlled substances doesn’t mean service members can inhale or otherwise abuse them without risk of discipline. It just means that the government will not be able to prosecute the service member who inhales, sniffs or “huffs” them for their intoxicating effects under Article 112a of the Uniform Code of Military Justice, which addresses the wrongful use of a controlled substance.

Instead, service members caught huffing can be prosecuted under Article 92 for failure to obey a lawful regulation. Various branch regulations that address substance abuse, such as Secretary of the Navy Instruction 5300.28E, Air Force Instruction 44-120 and Army Regulation 600-85, prohibit inhalant abuse.

For example, the Navy instruction states: “Although not illegal to possess, using chemicals illicitly for purposes other than what they are intended for, (e.g., rubbing alcohol, ethanol), and propellants and inhalants (e.g., dust-off, nitrous oxide), is prohibited.”

Similarly, the Air Force instruction notes that possession of any intoxicating substance, including inhalants and propellants, “if done with the intent to use in a manner that would alter mood or function,” would constitute an Article 92 violation.

Huffing also may lead to a charge under the UCMJ’s general article, Article 134. In fact, under that article, “any substance abuse offense not covered by Article 112a may be charged as a violation,” the U.S. Air Force Court of Criminal Appeals noted in U.S. v. David B. Deserano (1995).

Further, case law supports that the government doesn’t even have to prove service members had a specific intent to get high by engaging in huffing activities; it only has to prove wrongful use of inhalants.

In U.S. v. Charles A. Caporale (2013), the Air Force Court of Criminal Appeals noted that glue sniffing violated the UCMJ even before the creation of Article 112a in 1983. According to the court, examples of intoxicating substances that can lead to Article 134 violations include nitrous oxide, also known as laughing gas and used as a propellant in whipped cream canisters, as well as cold and cough medicine.

Service members charged with abusing legal substances should immediately contact a military law attorney. Depending on the circumstances, an attorney could show the service member did not know the intoxicating effects associated with the inhalation or consumption of the substance.

Mathew B. Tully is a veteran of the wars in Iraq and Afghanistan and founding partner of Tully Rinckey PLLC (www.fedattorney.com). Email questions to askthelawyer@militarytimes.com. The information in this column is not intended as legal advice.

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