(Photo credit: Staff Sgt. Joshua Magbanua/Air Force).
The nation’s highest military appeals court has agreed to consider whether a positive marijuana drug test alone can be used as evidence that a service member knowingly used marijuana.
The U.S. Court of Appeals for the Armed Forces has granted review in United States v. Collyn L. Lawrence, a case involving an Air Force member convicted of wrongful THC use. The court will consider both whether the so-called “permissive inference” is unconstitutional in marijuana cases and whether Lawrence’s conviction was legally supported by the evidence.
Under military law, knowledge that a controlled substance is present in a person’s body is required for a wrongful-use conviction. However, the Manual for Courts-Martial allows that knowledge to be inferred from the presence of the controlled substance in the person’s body or from other circumstantial evidence. The inference can, under certain circumstances, be sufficient to establish the government’s burden of proof.
Lawrence, an Airman First Class at the time of his court-martial, was randomly selected for a urinalysis on January 9, 2024. Testing found a THC metabolite concentration of 22 nanograms per milliliter, above the Department of Defense cutoff of 15 ng/mL. He was subsequently convicted of wrongful use of delta-9 THC and sentenced to a reduction in rank to E-2 and a reprimand.
Lawrence challenged the conviction, arguing that prosecutors presented no direct evidence that he knowingly consumed THC and instead relied on the permissive inference. He also argued that marijuana has become sufficiently prevalent that accidental or unknowing exposure is now common enough that a positive drug test should not automatically support an inference of knowing use.
The Air Force Court of Criminal Appeals rejected those arguments in May. The three-judge panel said expert testimony established that the THC metabolite detected in Lawrence’s urine could only result from THC use, that the concentration was high enough to reasonably discount unknowing ingestion and that the testing method was reliable. The court also noted evidence that Lawrence used a vape and had recently been on leave.
The appeals court said the permissive inference has existed in the military justice system for more than 70 years and concluded that Lawrence’s conviction was both legally and factually sufficient.
The U.S. Court of Appeals for the Armed Forces will now review that conclusion. The court specifically agreed to decide whether the inference is unconstitutional “both facially and as applied to this case,” as well as whether Lawrence’s marijuana-use conviction is legally insufficient.
Lawrence’s opening brief is due September 15. The government will then have 21 days to respond, followed by seven days for Lawrence to file a reply. A hearing date has not yet been scheduled.
A ruling against the permissive inference could have broader implications for how marijuana-use cases based largely on urinalysis results are prosecuted throughout the U.S. military.
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