14 July 2007

New AFCCA Cases

Yesterday, three new unpublished opinions appeared on the AFCCA website. Only two of the opinions contain any substance. Here's the latest case issued.

In United States v. Lane, ACM S30930 (A.F. Ct. Crim. App. Jul. 13, 2007), the AFCCA faced a use of cocaine case with rather convoluted facts. On 15 November 2004, the appellant went to the home of her NCOIC to complain of bugs and worms that were crawling on her skin. The following day, the appellant failed to show up for work at the hospital pharmacy after a scheduled appointment with her psychiatrist. The unit discovered that the psychiatrist had cancelled the appointment and had told the appellant to report to the emergency room, which she had not done.

At the direction of the pharmacy supervisor, who was also the acting Group Commander, unit personnel were sent to her apartment to bring her back to base. Upon her return, the appellant was subject to urinalysis testing. The opinion does not explain why, so we are left to guess that it was required of all personnel who returned from an unauthorized absence. The staff refused to provide the acting commander with the results, invoking the Health Insurance Portability and Accountability Act (HIPAA) (42 U.S.C. § 1320-d et. seq, (1996)), which provides, among other things, protection from the use and disclosure of protected health information.

Apparently the acting commander did not think to call the JAG--or if she did she got some bad info. Nevertheless, the acting commander had access to the computer system storing the results and discovered the test results were presumptively positive for cocaine use. When the commander tried to order a confirmatory test, the staff refused.

Several months earlier, under similar circumstances, the appellant had provided another urinalysis that was presumptively positive for cocaine. The commander was never notified of the results and they were not discovered until a month later as the appellant's records were being prepared for a medical evaluation board. By that time, the specimen had apparently been destroyed so no confirmation test could be performed.

The commander finally decided to seek a probable cause determination from a military magistrate. That urine specimen also tested positive for cocaine. The AFCCA decided that the HIPAA did not apply, as it was not intended to provide an exclusionary rule for violations of the act. The AFCCA also concluded that there was probable cause to seize the specimen and the test was also admissible because it was performed for medical diagnosis and treatment.

Wasn't this just a legitimate inspection -- testing anyone who was returning from a UA? See United States v. Davis, 54 M.J. 690 (A.F. Ct. Crim. App. 2000); United States v. Valenzuela, 24 M.J. 934 (A.C.M.R. 1987).

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