Poppy seeds have long been associated with the potential to cause a positive drug test for opiates such as morphine and codeine. Just recently, in February of 2023, the Department of Defense (DoD) issued a warning to military services regarding the consumption of poppy seeds and the implications for drug testing. This article will explore the reasons behind this concern, the impact on service members, and the potential defense strategies in cases involving positive drug tests due to poppy seed ingestion.
Understanding Article 112a, UCMJ (Drug Abuse)
Article 112a of the Uniform Code of Military Justice (UCMJ) addresses drug abuse and criminalizes the wrongful use, possession, manufacture, distribution, importation, and introduction of controlled substances into military installations or vehicles. To be guilty of violating Article 112a for drug use, the Government must prove two elements:
- The service member used a controlled substance.
- The service member’s use was wrongful.
It is important to note that innocent or unknowing ingestion of a controlled substance does not constitute wrongful drug use. This distinction is crucial in cases where individuals inadvertently consume substances that result in positive drug tests.
The potential punishments for Article 112a will vary depending on: 1) the type of controlled substance at issue; 2) the amount of controlled substance at issue; and 2) the activity of status of the service member when the activity occurred.
For example, a service member accused of using a Schedule III controlled substance – which would include products containing less than 90 milligrams of codeine per dosage unit (Tylenol with codeine) would face dishonorable discharge, forfeiture of all pay and allowances, and confinement for five years. Service members accused of using a Schedule V controlled substance – which would include cough preparations with less than 200 milligrams of codeine or per 100 milliliters (Robitussin AC) – would face dishonorable discharge, forfeiture of all pay and allowances, and confinement for two years.
You can find more in-depth information regarding Article 112a violations in general, as well as defenses to the same, on our website.
If you test positive for codeine on a urinalysis, your medical record was likely screened for prescription medication that contains codeine. If your record does not contain such prescriptions, your command will likely assume you abuse drugs. The command reaction is in line with a trend of abusing cough syrup with codeine in a concoction called Sizzurp.
The Controversy Surrounding Poppy Seeds and Drug Testing
Poppy seeds themselves do not contain opiates. However, during the harvesting process, contamination can occur, leading to poppy seeds containing trace amounts of morphine and codeine. This contamination can vary depending on the type of poppy seeds and the cultivation methods.
In the past, the DoD excluded poppy seed consumption as a legitimate explanation for a positive urinalysis if the sample contained concentrations of both codeine and morphine. However, recent scientific studies have indicated that certain poppy seeds can result in a positive urinalysis for codeine only, suggesting that innocent ingestion is possible.
DoD Warning and Temporary Suspension
In response to these findings, in February of 2023, the DoD’s Office of Drug Demand Reduction (ODDR) issued a warning to service members regarding the consumption of poppy seed products (the “Poppy Seed Memo”). The ODDR temporarily suspended reporting of codeine results on all urinalyses processed at the Department of Defense Forensic Toxicology Drug Testing Laboratories and halted the destruction of urine specimens previously reported as codeine positive.
This precautionary measure aims to prevent potential false positives and ensure that service members are not unfairly penalized for innocent poppy seed ingestion. The DoD also released a memo advising service members to avoid consuming poppy seed products altogether.
Implications for Previously Discharged Service Members
Service members who have previously tested positive for codeine, consistent with poppy seed ingestion, may be identified and contacted by their respective military branch. These individuals may be eligible for remedial actions, although the specifics of these actions are not explicitly defined.
Alternatively, service members who want to take proactive measures can petition their Discharge Review Board or Board for Correction of Military/Naval Records for a discharge upgrade or other potential relief.
Defense Strategies for Positive Drug Tests
It is a common misconception that individuals cannot challenge a positive drug test. However, service members facing such allegations have the right to present a defense. In the case of poppy seed ingestion, the defense strategy would involve demonstrating that the ingestion was accidental or unknowing.
To mount a successful defense, it is essential to gather evidence supporting the claim of innocent ingestion. This may include providing documentation of food consumption, gathering expert opinions on the likelihood of poppy seed contamination, and presenting any other relevant evidence that supports the defense’s assertion.
By way of example, if you tested positive for codeine after ingesting a baked good containing poppy seeds, a successful defense might involve obtaining witness statements from any individuals who observed you purchase and/or eat the baked good. It may also be wise to obtain the baked good and ship it to an accredited laboratory for independent testing.
Historically, drug testing has come down to the ratio of morphine to codeine. Specifically, the readings are read as not resulting from poppy seed ingestion if the morphine level exceeds 5,000 ng/ml, the codeine level exceeds 300 ng/ml, and/or the ratio of morphine to codeine is less than two to one. Unfortunately, though, recent studies have shown that there is, in fact, no magic ratio that automatically lets a drug testing laboratory know whether the presence of codeine is from deliberate misuse versus consumption of a poppy seed bagel. Thus, there have been many cases where service members have falsely tested positive for codeine misuse.
The Importance of Legal Representation
Navigating the military justice system can be complex, especially in cases involving drug abuse. It is crucial for service members facing allegations of drug use to seek legal representation from experienced military defense attorneys.
Military justice attorneys specializing in drug abuse cases have the knowledge and expertise to develop strong defense strategies tailored to the unique circumstances of each case. They can guide service members through the legal process, ensure their rights are protected, and work towards achieving the best possible outcome.
Conclusion
The consumption of poppy seed products can potentially lead to false positive drug test results for codeine. The DoD has acknowledged this issue and taken steps to address it by temporarily suspending the reporting of codeine results and warning service members to avoid consuming poppy seed products.
Service members who have previously tested positive for codeine may be eligible for remedial actions. In cases involving positive drug tests due to poppy seed ingestion, service members must seek legal representation to mount an effective defense. By working with experienced military defense attorneys, service members can navigate the legal process and protect their rights.
Nationwide Military Defense Lawyers
If you are charged with violating Article 112a, contact an experienced military defense lawyer today. At National Security Law Firm, we have defended servicemembers facing courts-martial for Article 112a offenses, and we will ensure that all avenues of defense are pursued in your case. Moreover, our military defense lawyers are here to assist you, regardless of where you are currently located. Call us today at (202) 600-4996 for a free consultation.
