A second positive urinalysis does not automatically transform a use case into a distribution case. The government must develop independent evidence of distribution, such as testimony from buyers, evidence of quantity inconsistent with personal use, financial records, or communications about supplying others. A repeated positive result establishes a pattern of use, which carries its own consequences, but it does not by itself provide the evidence needed to sustain a distribution charge.
The risk that a second positive will be used to pursue a more serious charge is real, and it affects the strategy a defense attorney recommends at every stage. Understanding what the government actually needs to prove distribution, as opposed to use, allows the defense to identify the specific gaps in the prosecution’s case and to challenge any attempt to elevate the charge on insufficient evidence. The distinction between use and distribution carries dramatically different sentencing exposure and requires a dramatically different defense approach.
What Evidence the Government Actually Needs to Charge Distribution
A distribution charge under Article 112a requires proof beyond a reasonable doubt that the accused actually transferred, or intended to transfer, a controlled substance to another person. The second positive urinalysis by itself provides no evidence of transfer. It establishes that the substance was present in the accused’s body on a second occasion, which speaks to a pattern of use, but use and distribution are different offenses with different elements. The government needs evidence of the transfer itself.
That evidence can take several forms. Testimony from a buyer who received a substance from the accused is the most direct. Communications, financial records, or physical evidence of quantities inconsistent with personal use can support an inference of distribution even without a buyer’s testimony. Investigators looking to build a distribution charge will search for these categories of evidence, and a defense attorney must assess the realistic likelihood that such evidence exists before advising on how seriously to treat the elevated charge as a litigation risk.
How Pattern of Use Differs From Evidence of Distribution
A second positive urinalysis establishes a pattern of use. It does not, without more, establish distribution. Distribution under Article 112a requires proof that the accused transferred a controlled substance to another person, and that element requires evidence beyond the fact of multiple positive tests. The government that wants to elevate a pattern-of-use case to a distribution charge needs independent evidence: witness testimony, surveillance, recovered quantities consistent with distribution, electronic communications suggesting sales or transfers, or financial records inconsistent with personal use.
A second positive result may motivate the command to look harder for that kind of independent evidence, but looking harder does not create evidence that does not exist. A defense attorney who understands the distinction between what the test results prove and what a distribution charge requires can effectively challenge any attempt to elevate charges based on test results alone.
The Role of Quantity and Circumstantial Evidence in Elevation
Distribution charges in drug cases often rest on quantity: an amount that exceeds what could plausibly be explained by personal use invites the inference that some was intended for others. In urinalysis cases, there is no physical quantity of the drug itself, only metabolite concentrations in urine. The metabolite concentration in a confirmed positive does not reliably indicate the quantity of the substance consumed, and courts have generally been skeptical of arguments that metabolite levels alone establish distribution quantity.
Circumstantial evidence that can support a distribution charge includes recovery of the drug in physical form in amounts inconsistent with personal use, drug paraphernalia associated with preparation for sale, large amounts of unexplained cash, communications that suggest transactions, and witness testimony from people who purchased from or were provided the substance by the accused. In the absence of this kind of independent corroborating evidence, the step from urinalysis positives to a distribution charge is a step that the government must take very carefully if it intends to succeed at trial.
When Commanders Use a Second Positive to Pursue Separation Instead
Not every second positive urinalysis proceeds to criminal charges. In cases where the command is focused on separating the service member rather than prosecuting them, the second positive may be used as the basis for an administrative separation action rather than, or in addition to, a criminal referral. Administrative separation for drug abuse following a second positive can proceed on a lower standard of proof than a court-martial, and the outcome can be a discharge characterization that carries significant consequences even without a criminal conviction.
Service members who believe their command is pursuing separation rather than criminal prosecution should not treat that as a less serious situation. An other than honorable discharge following administrative separation for drug abuse can result in the loss of VA benefits, difficulty in civilian employment, and a permanent record of adverse military service characterization. The defense approach for an administrative separation board differs from a court-martial defense strategy, and counsel with experience in administrative proceedings is essential for either track.
Defending Against Upgraded Charges Based on Testing History
The defense against an escalated charge that uses a second positive as its foundation begins with a careful analysis of the elements the government must prove and the evidence it actually has. If the government is asserting distribution based on testing history plus nothing else, the defense can challenge the legal sufficiency of the charge at the earliest opportunity. A motion to dismiss a distribution charge that rests only on urinalysis results, without independent distribution evidence, may succeed at the pretrial stage.
If the government has independent distribution evidence in addition to the testing history, the defense must assess that evidence on its merits and develop strategies for challenging it specifically. The testing history is relevant context but is not the heart of the distribution case. The heart of that case is the independent evidence, and that is where the defense resources should be concentrated. Counsel who have handled distribution charges arising from drug testing investigations understand how these cases are typically structured and where the most productive challenges lie.
This content is provided for educational purposes only and does not constitute legal advice. Military law is complex and fact-specific. If you are facing a UCMJ investigation, court-martial, administrative separation, or any other military legal matter, consult a qualified military defense attorney before taking any action.