If you are a member of the armed forces and need assistance with a military criminal charge, contact Military Criminal Defense Attorney John L. Calcagni at (401) 351-5100 now for more information and assistance.
Cocaine Use: Finding of No Misonduct and Retained for Future Military Service.
A U.S. Army National Guard Non-Commissioned Officer (NCO) tested positive for cocaine use during a unit-wide urinalysis for unlawful drug use. The NCO, a female of Latin-American decent, consumed a Latin herbal tea made partially with coca leaves, a major component to cocaine, several hours before the urinalysis. The NCO’s family member offered her the tea as a home remedy for an upset stomach. The NCO consumed the tea without realizing it was of the type made with cocoa leaves and thereafter attended her scheduled monthly battle drill. While there, she participated in a urinalysis that detected the cocaine metabolite in her system. In accordance with army regulations, the NCO was both flagged from favorable personnel actions and processed for administrative separation from military service. The NCO was in the zone at the time for re-enlistment and promotion with plans to attend both Air Assault and Officer Candidate School. She was also a leading candidate for a full-time AGR position with the National Guard. Because of the positive urinalysis and resulting flagging action, all of these plans were placed on hold. Needless to day, the NCO had a lot on the line and much to lose with the pending separation action, to include her military career.
The NCO was represented by Attorney John L. Calcagni III for purposes of her separation hearing board. Attorney Calcagni worked hand-in-hand with his client to prepare an ironclad defense at the hearing. Attorney Calcagni’s defense employed a two-part strategy. First, Attorney Calcagni sought to highlight for the board members the NCO’s impeccable service record. This female had nearly ten (10) years of military service at the time. She had previously deployed to Iraq. She was also highly regarded among her peers and by her chain of command, to include both her Battalion Commander and Battalion Sergeant Major. Similarly, her Company Commander and First Sergeant gave her stellar reviews. She also had countless certificates, achievements and awards in her service record. Attorney Calcagni marshaled this information before the board members in the form of both live and recorded witness testimony as well as documents from the NCO’s personnel files.
The second prong of Attorney Calcagni’s defense was to demonstrate that the NCO innocently ingested the cocoa tea without knowing of its chemical make-up. Part of this defense prong was to establish the small amount of cocaine base in each tea bag, and how that small amount ingested close in time to a urinalysis could yield results equal or similar to that of the NCO. Lastly, Attorney Calcagni sought to show that this small amount of cocaine base, if ingested into the body, would not produce any psychological or physiological effects that would give notice to an ingested illicit substance. To obtain and present this evidence, Attorney Calcagni underwent a nationwide search for toxicologists with Department of Defense (DOD) and/or military backgrounds. He located such an expert with extensive experience performing urinalysis testing for the U.S. Army. Attorney Calcagni then employed an investigator to go into the local community to purchase the cocoa tea in question, which is available for sale in inner city Hispanic markets. The investigator acquired the type and brand tea consumed by the NCO. He also acquired more potent samples from the local market place. A sample of the type and brand of tea consumed by the NCO was then shipped to a laboratory, at the toxicologist’s instruction, for chemical testing. This testing confirmed Attorney Calcagni’s theory – that someone of the NCO’s height and weight, who consumed one standard cup of the brewed cocoa tea within hours of a urinalysis, would test positive for the presence of cocaine as did this unlucky Soldier. The toxicologist completed a report of the laboratory’s findings and set forth his opinion, which was that one bag of the tea contained enough cocaine base such that if consumed within hours of the urinalysis, would yield test results for the presence of cocaine in a similar quantity as the NCO. He further opined that the NCO would not have experienced any effects from the substance and therefore, could have innocently ingested it. The report was presented for the board members’ consideration.
In closing argument, Attorney Calcagni argued that the NCO was the epitome of an American Soldier who lived and breathed the Army values. He also argued that she was the antithesis of a drug user. Because of her ethnic background, her family member provided her a substance that though comprised partially of the cocoa leaf, is apparently lawful in the United States given its availability for purchase in the local community. Lastly, he argued that her character and reputation in the National Guard buttressed and supported her innocent ingestion, which was scientifically proven by the toxicologist’s report. As a result of these efforts, the board members voted unanimously that the NCO committed no misconduct. The members further voted for the NCO to be retained for future service, and be immediately reinstated to duty and for all other service-related benefits. Congratulations to this NCO, who has since become a Commissioned Officer, for this outstanding result.
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