The Military Justice Center Fayetteville Criminal Defense Lawyer | Military Law 2024-01-03T03:31:36Zhttps://www.militaryjusticecenter.com/feed/atom/WordPress/wp-content/uploads/sites/1602288/2022/04/cropped-site-identity-32x32.jpgOn Behalf of The Military Justice Centerhttps://www.militaryjusticecenter.com/?p=494532023-09-05T11:47:50Z2023-09-05T11:47:50Zlead to military punishment. Possible penalties include forfeiture of pay, confinement and possibly discharge. How can someone potentially defend against claims that they were absent without leave?
Prove that they followed protocol
Perhaps there was an error on someone else's part. Establishing that someone did attempt to follow the right procedures could help prove they had no intent to violate military rules. Particularly in scenarios where someone needs sudden, unexpected leave, such as when they have an emergency or lose a family member, there could be mistakes made in the process of providing notice or requesting leave that puts someone in a vulnerable position should the person that they communicate with fail to follow up on the matter.
Establish a medical explanation
One of the most reasonable explanations for why someone would be absent from their military job without leave or communication with the chain of command would be that they experienced some kind of medical emergency. Maybe they got into a car crash while visiting family off-base, or perhaps they suffered a head injury while hiking and remained unconscious at a medical facility for days. In some cases where someone's absence persists for 30 days or longer, they may end up facing much more serious accusations of desertion.
The sooner someone corrects an inappropriate absence and discusses the matter at length with those familiar with military rules, the better their chances of avoiding the worst possible consequences associated with an unpermitted absence from service.]]>On Behalf of The Military Justice Centerhttps://www.militaryjusticecenter.com/?p=494452023-05-17T17:49:02Z2023-05-17T17:49:02ZArticle 32 preliminary hearing when the charges against the Armed Forces member are severe enough that a trial by general court-martial is likely.
The commander appoints a preliminary hearing officer (PHO) to conduct an Article 32 hearing, which consists non-testimonial evidence and examines witnesses.
Once the Article 32 hearing is complete, the PHO must submit a report to the commander who ordered the hearing. Upon review of the PHO's report, the commander decides on what happens next.
Does the individual accused have rights?
Yes. The Service Member has a right to representation by appointed military defense counsel. They can also request a specific military defense attorney or hire a private civilian attorney at their expense.
There is always something to be gained by having the case heard at an Article 32 Preliminary Hearing. Often, it is a way to make an argument that even if there is probable cause an offense occurred, a General Court Martial is not the appropriate outcome. No one should waive their right to an Article 32 without talking to a trained Defense Counsel and understanding the benefits that can be gained by going and what could be given up by waiving this important right.]]>On Behalf of The Military Justice Centerhttps://www.militaryjusticecenter.com/?p=493842023-01-12T20:52:18Z2023-01-19T19:03:27Zsubjected to random drug tests. These are handled by either a random picking of service members or can involve testing everyone in a section or shift. In addition, service members can be subjected to a urinalysis directed by a commander on the basis of probable cause – which is the equivalent to a search warrant. Moreover, service members may be subjected to a urinalysis for medical treatment, and drug treatment urinalysis and similar tests are subjected to separate rules. Finally, a urinalysis is possible if you consent.
Not all urinalysis results are suitable for action
One thing to remember is that not all urinalysis results can be used for action under the Uniform Code for Military Justice. For example, a command-directed test that is without probable cause may not be admissible in a Court-Martial. IN CONTRAST, a urinalysis performed with your consent can be used for any UCMJ action including a Court-Martial. There are restrictions on the use of a urinalysis when it is taken for medical or drug treatment. It is important to remember that every situation must be evaluated separately.
Whether UCMJ or administrative action is contemplated, the chain of custody and protocol for collecting and testing the sample may be very relevant. Failure to follow appropriate procedures or ensure chain of custody can impact how the command can use the results of a urinalysis. Therefore, everything from the collection of the sample to the storage of the bottle and the lab procedure may become crucial. Moreover, there are circumstances where individuals may have ingested a drug without knowledge or intent. If this can be established, it means a person is not guilty of wrongful use.
Anyone who tested positive for drugs while serving in the military should act immediately. The simple fact is service members who test positive are assumed to be guilty of unlawful use. However, there may be areas of inquiry and investigation that can be undertaken to establish your innocence. However, any delay may impact the opportunity to secure exculpatory evidence. Service members who have tested positive may face an Article 15, administrative separation or even court-martial. Very simply a positive drug test can end your military career and leave you with an unfavorable discharge and loss of military benefits. If you test positive on a military urinalysis, you should discuss your situation with an attorney familiar with military legal matters as soon as possible.]]>On Behalf of The Military Justice Centerhttps://www.militaryjusticecenter.com/?p=494232023-01-11T21:09:11Z2023-01-17T19:02:36ZArticle 15 disciplinary hearing (or Non-Judicial Punishment) instead of a court martial.
An Article 15 (or Non-Judicial Punishment) allows commanders to make decisions about someone's guilt and impose punishment without involving the Court-Martial process. Article 15 hearings are ordinarily only an option for minor accusations and the service member (with the exception of sailors aboard a vessel) has the right to decline the Article 15 and demand a Court-Martial instead. Considering the importance of this decision it is essential that you understand you rights during an Article 15 hearing and the consequences of Article 15 punishment.
The right to legal advice
If you are accused of a violation of the UCMJ and you are offered and Article 15 (or Non-Judicial Punishment), you have a right to request the advice of a lawyer before deciding to accept facing an Article 15. An attorney can review that allegations against you and advise you about the decision to accept or decline the Article 15. In the Army, and occasionally in the other services, an attorney may be permitted to serve as your spokesperson and help argue your case in front of the commander so long as this does not unreasonably delay the hearing.
It is important to understand that accepting an Article 15 does not necessarily mean you are admitting guilt. At an Article 15, you can present your case to commander and argue that you are not guilty of the allegation against you. In the Army the commander must be convinced of your guilt beyond a reasonable doubt. You may also present evidence of extenuation and mitigation even if you are guilty of the allegation. An attorney can assist you in making this presentation and in many cases serve as your spokesperson before the commander. This is an informal process and not a trial, on the other hand, a commander should give you an opportunity for you to present your case – which often more effective with the assistance of a lawyer experienced in military law.
The right to request a full court-martial
Technically, an Article 15 hearing is less serious than court-martial proceedings. However, especially in a situation where a servicemember believes their commanding officer will not be impartial, asking for a thorough review instead of leaving your fate in the hands of one individual can sometime be a better option. On the other hand, punishment at an Article 15 is not a criminal conviction, so you need to be very careful when deciding whether to demand trial by Court-Martial. You should not turn down an Article 15 or refused Non-Judicial Punishment without first reviewing you case with an attorney experienced in military law.
The right to request an appeal
If the commander presiding decides that you are guilty and imposes a penalty, you may appeal to the next senior commander. On appeal your punishment cannot be increase. On the other hand, punishments begin immediately and will be administered while you appeal is pending.
The next commander in seniority has the authority to find you NOT Guilty or to reduce your sentence. You do not have the right to present your appeal in person, although some commanders will give you this opportunity. An attorney can assist you and drafting your appeal and presenting it to the next commander.
Even if an appeal is denied, there are procedure for removing an Article 15 from you record that is unjust and erroneous. An attorney experienced in military law can advise you about these provisions.
An Article 15 can drastically impact your military career. Know your rights. Seek the guidance of an attorney experienced in military law before making a decision regarding an Article 15. Whatever kind of disciplinary hearing you face get the right support from a lawyer facing the military justice system.]]>On Behalf of The Military Justice Centerhttps://www.militaryjusticecenter.com/?p=494012023-01-11T20:51:01Z2023-01-13T19:02:22Zjust under investigation does not mean that you do not need the help of experienced attorney.
Some people say hiring a lawyer during an investigation is a bad idea because it makes you look guilty. The truth is you are almost always better off having an experience criminal defense lawyer to guide you through the process if you are under investigation.
With an experienced attorney by your side, you can face an investigation knowing that you have a professional at you side to answer questions, advise you of your rights and guide you through the process.
Moreover, police officers and prosecutors are put on notice that they must respect your rights and conduct themselves professionally. A police officer ordinarily should not question you if you are represented by counsel.
Here are two valid reasons why you need to hire an attorney as soon as you learn that the police are investigating you.
Your attorney will speak to the police on your behalf
Sometimes, you may be inclined to want to “clear things up” by cooperating with law enforcement during the investigation process. However, it is important to understand that what you say can and might be used against you in a trial.
An attorney can better assess your situation and tell you if it is better to remain silent or provide information to the police that might be relevant. Simply put, sometimes you are better off invoking your Fifth Amendment right to remain silent and sometimes it is better to speak to police early in the investigation. If you speak to the police, you are entitled to have your attorney present and you and your attorney and terminate the interview if you do not feel comfortable about the interview. In any event an experienced attorney can evaluate the situation and guide you through the process.
Sometimes it is sufficient for the attorney to provide important evidence to the police that might clear up any questions they might have. The key is to be professional and respectful while protecting your rights. An attorney cannot prevent you from being arrested if the police have an arrest warrant, however it is not uncommon for police to notify an attorney of an arrest warrant and allow the accused to turn himself in. Turning yourself in, with your attorney beside you, helps you to be prepared for the process and makes it easier to be released on a reasonable bond.
Begin work on your defense
By bringing an attorney on board early, your attorney will have more time to investigate the matter and begin work on your defense.
Your attorney, often through a private investigator, can interview witnesses and obtain key evidence. Your attorney can piece together the timeline that might shed light on your case and secure important information or documents.
Identifying exculpatory evidence early in an investigation can be very helpful either in preparing for an eventual trial or even persuading the prosecutor to drop the case.
An attorney can protect your rights during the investigation and, together with a private investigator, begin locating potential defense witnesses in the event of a trial.
As soon as the police begin to ask you questions, you need to hire a lawyer. Even before your arrest, a lawyer can help safeguard your rights and interests while steering clear of missteps that can unintentionally incriminate you down the road.]]>On Behalf of The Military Justice Centerhttps://www.militaryjusticecenter.com/?p=493942023-01-11T21:35:46Z2023-01-11T19:02:11Zdriving that occurs on federally owned land, such as military installations like Fort Bragg, or national forests and park areas. Some airports and airfields are also considered federal lands. If you’re charged with drunk driving as a federal offense, you need an attorney familiar with that particular jurisdiction. For example, if you are charged with DWI on Fort Bragg, here’s what you should know about your first court appearance before the United States Magistrate Judge.
What will happen at the first court hearing?
The initial court hearing before the United States Magistrate Judge tends to be very short. However, the process in the court can take several hours, depending on the docket. Once in front of the Magistrate Judge, you will be told the charges that you are facing and also be told of your rights. Unless the government requests that you remain in custody, you will generally be released on conditions. Shortly after you enter the courtroom, the clerk will provide you with the court’s standard conditions of release for you to review. This will ordinarily include the surrender of your license for 30 days. You will not be permitted to drive for 30 days following your initial appearance. After 30 days, your license can be mailed back to you or to your attorney, and you will be able to drive in North Carolina. Remember, you still cannot drive on Fort Bragg. The Fort Bragg Garrison Commander will ordinarily revoke your privilege to drive on Fort Bragg once you are charged. The return of your license does not affect the order of the Garrison Commander. Only the Garrison commander can give you the right to drive on Fort Bragg.
You will also be told that you have the right to have legal counsel and the right to plead not guilty and go to trial. Individuals who meet certain qualifications will be able to have a federal public defender appointed to their case instead of retaining their own counsel. If you have a privately retained attorney, he or she will generally stand with you during the initial appearance and communicate with the Judge on your behalf. In most situations, your case will be continued.
The Magistrate Judge will give you information about your next court date. If you’re conditionally released from custody, you must ensure you’re at the next court hearing. If you have an attorney, he or she will give you further instructions. In the interim, you should begin to prepare your defense strategy with your attorney.
Make sure you understand your rights and the options you have for your defense. While federal DWI charges are typically misdemeanors, they can still significantly impact your life, and they are handled differently than state cases. If you are in the military, you will also face other military consequences. Working with an attorney who can help you navigate through the federal court system as well as the military justice system can be extremely helpful.]]>On Behalf of The Military Justice Centerhttps://www.militaryjusticecenter.com/?p=493722022-10-27T20:38:08Z2022-11-08T21:34:53ZThe feeling of spotting those police lights flashing through your rear-view mirror can be unsettling, to say the least. However, what follows next can be life-altering in a number of ways. If the officer discloses that they are pulling you over for a drunk driving investigation, they will most likely ask for a Breathalyzer test.
It is not uncommon for the Breathalyzer equipment to give false results. Exactly how does a false positive happen?
Time factors can lead to false positives
The Breathalyzer equipment is designed to measure the concentration of alcohol in your blood. If you take the test immediately after consuming even a small amount of alcohol, it may return a false positive result. To eliminate this error, the police are trained to wait at least 15 minutes after the stop before administering the test.
Eating certain foods or taking certain medication can also be a problem
Consuming foods that contain alcohol or high levels of yeast can also lead to a false positive. This is because as yeast ferments during digestion, it converts sugars to alcohol. Foods that can potentially lead to a false positive include ripe fruits, fermented sodas, certain energy drinks as well as non-alcoholic wines and beers. Medications that can elevate your BAC reading include allergy medications, oral gels and mouthwashes, certain anti-ulcer medications and certain multivitamins. Getting indicted and charged with drunk driving can turn your life upside-down almost instantly. Knowing your legal options can help you defend yourself and safeguard your rights following a DUI charge. ]]>On Behalf of The Military Justice Centerhttps://www.militaryjusticecenter.com/?p=493252022-10-27T20:37:54Z2022-11-04T20:31:54ZIf you have made your career in the United States Army, you realize that your advancement and promotion possibilities depend on varying factors. One is the Officer Evaluation Report (OER) -- an assessment that carries enough weight to deter any further progress up the promotional ladder of the military.While any officer has a right to appeal a derogatory evaluation, the decision to do so must be carefully strategized and weighed against the possibility that an appeal could potentially worsen your status.
What you may want to let go
Administrative errors occur in the Army and typically won’t merit an appeal. The military takes the position that these minor errors, e.g., incorrect weight/height statuses or signature lapses, should have been noted prior to the reports being signed by the relevant parties.
When challenges can be appropriate
Do you feel that your evaluation was unjust due to conscious or unconscious prejudices or biases on the part of your evaluator? Was something reported inaccurately, or important clarifying information omitted? If so, you might decide to appeal your OER with the Army Special Review Board.
Will your appeal boost or tank your military career?
Should you win your appeal, the comment in question can be eliminated and promotions denied based on the eliminated information could now be reconsidered. But a denied appeal could actually worsen the original evaluation and give it even more gravitas. Be mindful of the Army’s position that OERs continue to be a vital tool that both measures and causes certain behaviors – and act accordingly.Seeking guidance and learning as much as possible about the appeal process can help to clarify your options.]]>On Behalf of The Military Justice Centerhttps://www.militaryjusticecenter.com/?p=493192022-10-27T20:37:43Z2022-11-02T20:31:38Z70 million Americans has a criminal record, which can impact their lives in many ways. An option for some people with a criminal record is to have it expunged. While not all situations are eligible for this, if yours is, there are multiple benefits offered by taking this step.
Benefits of expunging your criminal record
There are several practical reasons to have your criminal records expunged. Some reasons you may be ready to take are likely based on the limitations of a criminal conviction. These include:
Your employer may be able to terminate you if they find you have a prior conviction.
An employer can deny a job to you if you have a criminal record, no matter when it occurred.
Some criminal convictions may make you ineligible for federally funded assistance.
Criminal history information is a public record.
You might be denied housing.
Your right to vote may be restricted.
Your right to own a gun is restricted
Can your record be expunged?
There are several expunction statutes in North Carolina. While some limit this to just drug possession, others provide expunction for more offenses. Because of the different laws in place, it’s important to work with someone who understands the requirements to ensure you take the right steps to have your record expunged.
Protecting your rights in North Carolina
Even minor crimes that you weren’t convicted of can impact your life years later. Because of this, it may be time to consider expunction for your criminal record.]]>On Behalf of The Military Justice Centerhttps://www.militaryjusticecenter.com/?p=493292022-10-27T20:37:34Z2022-10-31T20:32:37Zmore effective than hair testing for detecting certain drugs.
It only takes a few moments for a servicemember to complete a test. The workers collecting such samples often do not require medical licensing, which may be necessary for tests that involve drawing blood. They only need to observe someone's behavior prior to and after the test. They will also do a visual inspection to check for signs of dilution and a temperature check to make sure someone didn't bring a sample from another person.
Servicemembers may be subject to chemical testing at different points throughout their career, including after an injury while on duty or when facing disciplinary actions that may relate to substance abuse. Those found to be in violation of military rules about substance use due to a failed drug test could face consequences including court-martial and dishonorable discharge. If you recently failed a urinalysis test, you can potentially fight back to protect your military career.
You can highlight concerning oversights
Chemical evidence is easily contaminated, and mistakes in record-keeping or in the laboratory processing of urine samples might lead to inaccurate or unreliable test results. If there are gaps in the chain of custody for the urine sample or questions about the accuracy of the specific test utilized, that could provide you with a basis for a defense.
You can provide an alternate explanation
Sometimes, the reason that you failed a drug screening is that you have a prescription from a medical doctor for a substance like a narcotic pain reliever. There are numerous medical and chemical explanations for a failed urinalysis test beyond simple drug abuse. There are also multiple issues that could affect the accuracy of urinalysis testing, ranging from vitamin C supplements to bacterial infections.
Evaluating the evidence against you and discussing your goals for your military career can help you plan a defense strategy when you fail a urinalysis test and worry about the impact that test will have on your future.]]>