Q. How can a service member challenge a positive urinalysis?

A. Don't let government prosecutors or commanders fool you: Drug test results are not infallible. They're done by humans, so human error can't be ruled out. Such errors are not rampant, but some drug screening labs have been decertified after reporting a false positive of a blind quality control specimen.

For a service member to be convicted of wrongful use of a controlled substance, the government obviously must prove beyond a reasonable doubt that he or she committed this offense. An experienced military law attorney should know how to analyze lab documents and pinpoint any places where reasonable doubt could arise.

One of the first things to scrutinize is the chain of custody: Was the urine sample properly shipped and stored? Was the package that contained the sample damaged? Did unauthorized individuals have access to the sample?

One of my firm's attorneys had a case in which the unit urinalysis coordinator kept urine samples out in the open in an office — not secured in a safe, as stipulated by regulations.

Even the process by which the urine was collected should be scrutinized by a military law attorney: Was the collection properly observed? Did the observer have the proper training?

And if the case makes it to court-martial and the government calls a drug expert to testify, a military law attorney could cross-examine that witness and highlight areas where reasonable doubt may lurk.

The 2004 case U.S. v. Mark S. Jackson shows not only how mistakes happen at screening labs but also how reluctant the government can be to admit those errors.

Jackson, an Air Force staff sergeant, was convicted of wrongful use of methamphetamine. In the case's discovery phase, the government failed to provide the defense with a report showing that the lab where his sample tested positive had come up with a false positive on another blind quality control specimen just a month before Jackson's trial.

Further, the same lab personnel behind that false positive also had handled Jackson's sample several months earlier.

The U.S. Court of Appeals for the Armed Forces reversed Jackson's lower-court conviction and set aside his sentence. The court said the information about the lab's handling of the specimens, which was improperly withheld from defense attorneys, "could have been considered by the [court-martial] members as critical on a pivotal issue in the case," namely, the lab's report that Jackson's specimen produced a positive result.

Troops whose urinalyses come back hot should consult an experienced military law attorney who might be able to challenge the urinalysis results, show the urinalysis resulted from an unlawful search, or raise a defense of innocent ingestion.

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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