EI INCUMBIT PROBATIO QUI DICIT.

How to Avoid the Minefields of Military Justice, Issue 3

There are so many things to talk about regarding alcohol. Quite a few of my cases root issues stem directly from too much alcohol. Sleeping behind the steering wheel after you have had too much to drink is a terrible idea. You might think that you are doing the right thing, getting in your car, going to sleep, and not driving it. However, sitting behind the wheel of the vehicle puts you in direct control of the vehicle and you could be potentially reprimanded for reckless endangerment, reckless driving, or driving under the influence. While there are some technical legal points to be argued here, it is not uncommon for an individual to be reprimanded if they are found, drunk behind the wheel of their vehicle. Additionally, certain state codes are stricter than others regarding this specific issue. If you are too drunk to drive home, get a ride. IF you can’t get a ride, fall asleep in the backseat of the vehicle where you can specifically show that you are NOT in control of the vehicle.

Some of you may be wondering what article of the UCMJ applies to this situation. Article 111, Drunken or Reckless Operation of a Vehicle, Aircraft or Vessel is the closest article on point. Under the UCMJ, service members can be charged with operating a vehicle while drunk or impaired. The manual for courts martials defines drunk and impaired to mean any intoxication which is sufficient to impair the rational and full exercise of the mental or physical faculties. Basically can you pass the field sobriety test? If not, you are impaired. Military law also contemplates blood alcohol content. In order to be found guilty of Article 111, the UCMJ requires that the accused have physical control of the vehicle and that the individual was either operating or in physical control of the vehicle while drunk, impaired or of a certain blood concentration level. Generally speaking, most service members who find themselves in such a predicament are caught and cited by the local civilian authorities. It is rare to see a service member charged for Article 111. In most military cases, an offense of this nature is handled with an administrative reprimand or non-judicial punishment.

I have seen a variety of cases dealing with drinking and driving. We have defended individuals who were found to be sleeping behind the wheel of a vehicle after a night of drinking. Some were still impaired when they were found. Others were not. We also had one particular case of Article 111 where an individual decided to spend a weekend afternoon drinking and then repair his vehicle. After consuming a rather large amount of alcohol, he decided it was a good idea to begin working on his pickup truck. There was an issue with the throttle of his engine. So, he turned his truck on to test out the engine’s throttle response. While he was conducting his tests, the engine caught fire and caused a tremendous amount of damage to the property he was renting along with his neighbor’s property. Technically, under the UCMJ, he was under physical control of the vehicle. He made the conscious decision to turn the truck on. The engine was running. He was intoxicated under the law. This was a textbook Article 111 situation that no one even contemplated. Most folks only think of drinking and driving as a problem. As you can see, Article 111 of the UCMJ clearly contemplates a variety of scenarios that could be problematic for a Service member. Remember, if you are drinking, it is best not to drive. If you are drinking it is best not to end the night sleeping behind the wheel of your vehicle. Lastly, it is best not to conduct mechanical repairs after drinking a significant amount of alcohol.