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Proof lies on him who asserts, not on him who denies. The concept is that one is innocent until proven guilty. Regardless of what the law says about reasonable doubt, there is an unwritten presumption within the ranks of the military that if you are charged with sexual assault, then you are guilty. The stakes are your life! Your military counsel works for the same military that charged you. Consider that as you choose who represents you in your potentially life altering case.

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Article 111 Drunken or Reckless Operation of Vehicle, Aircraft or Vessel

The operation of vehicles, aircrafts and vessels in military installations is an essential part of service members' activities and duties. They are professionally obligated to operate vehicles in a responsible manner. Failure to do so is considered a violation of UCMJ, and covered under Article 111 Drunken or Reckless Operation of Vehicle, Aircraft or Vessel.

Elements of Article 111

A service member is subject to this article if he was operating or physically controlling a vehicle, aircraft or vessel in (a) a reckless or wanton manner (b) a drunken state (c) an impaired state caused by the consumption of a controlled substance. If found guilty, he will be punished as a courts-martial may direct.

A more detailed explanation of elements

Reckless or wanton: If the service member in duty failed to use due care without considering the safety risk he posed to others, he is said to have demonstrated simple negligence. If this behavior is combined with a deliberate or gross disregard for occupants' and others' safety, which posed imminent danger to them, the service member is said to have acted in a reckless or wanton manner. Even willful conduct is deemed to be wantonness.

Operating or controlling: A service member is said to have operated a vehicle, aircraft or vessel if he is (a) driving or guiding it himself or through the agency of another person or even (b) causing the vehicle, aircraft or vessel to move by manipulating its controls or setting its motive power into action.

Control has a broad meaning and covers a person with the authority and means to manipulate the movements of the vehicle even if he was not attempting to control the vehicle and there was no link between his consumption of drugs/alcohol and the operation of the vehicle. The service member is said to be in physical control of the vehicle if he had the capability and power to direct, influence and manipulate it himself or through the agency of another person regardless of whether the vehicle was operated.

Drunkenness or impairment refer to intoxication by alcohol and a controlled substance respectively, which is sufficient to diminish the mental and physical faculties of the service member. The level of alcohol concentration prohibited is the same as that established by different states laws. If the behavior took place in a military installation located in more than one state, with the states defining their prohibited blood alcohol levels differently, the concerned Secretary for the installation shall take the final call on the uniform level to be applied to the case. The prohibited alcohol concentration level outside the United States is 0.10 grams or more of alcohol per 210 liters of breath or 100 milliliters of blood. In determining the nature of the substance causing impairment, the military judge may consider if it is a scheduled (Schedules I through V) controlled substance.

Points to note

1. If the military judge is convinced beyond a reasonable doubt that the accused was operating the vehicle when the alcohol concentration in his blood was equal to or more than the prohibited level as determined by a chemical analysis, proof of drunkenness or impairment is not required.

2. The accused's actions can also cause injury to another person or persons. The victim(s) can allege injury if the accused's actions were the immediate or nearly accurate ('approximate') cause of their injury.

Defenses

1. In determining if the evidence is sufficient to convict the accused under this chapter, the military judge shall take into consideration any deviations from regulations governing the handling of breath, blood and urine samples. So, reliability of the testing procedures becomes a defense.

2. In cases where injury is alleged, there could be evidence of or doubts concerning the role of an intervening, independent or unforeseeable event not involving the accused's conduct, that played a dominant role in causing the injury. Here, the accused's conduct shall not be deemed a proximate cause to injury and the prosecution must prove beyond a reasonable doubt the non-existence of an intervening cause, in order to get a conviction.

Punishment

If the accused's actions have resulted in personal injury, he faces Dishonorable Discharge, total forfeiture of pay and allowances and confinement for 18 months, if convicted. If no injury has resulted, the maximum punishment includes Bad Conduct Discharge, total forfeiture and confinement for six months.

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