United States v. Mitchell

15 M.J. 654, 1983 CMR LEXIS 1004

Opinions

SANDERS, Senior Judge:

In accordance with applicable regulations, Petty Officer Flint’s command directed that on 16 August 1982 personnel whose social security number ended with the numeral “6” submit a urine sample to determine if they had used marijuana. Since Petty Officer Flint was not present that day she was ordered to supply a specimen when she arrived the following day. When she was unable to do so she was escorted to the command’s library and instructed to remain and drink fluids until she could supply the specimen. She did as she was told and the subsequent urinalysis was positive.

At her trial for the use of marijuana on or about 17 August 1982, the respondent ruled that evidence of the results of this urinalysis was barred by Mil.R.Evid. 312(e).

Petitioner now prays that this Court issue a writ of mandamus directing the respondent to reverse his ruling. We decline to do so.

While I have reservations concerning the respondent’s interpretation of the rules of evidence, we find his ruling neither in clear violation of precedent nor patently inconsistent with the commentaries and hence within his discretion to make. United States v. LaBella, 14 M.J. 688 (N.M.C.M.R. 1982).

Accordingly, petitioner’s request is denied. The record is submitted to the Judge Advocate General for return to the military judge for such further proceedings as may be appropriate.