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DUI / DWI Cases: Military Justice Court Proceedings and the Injustice of It All

December 9th, 2005

By: Edward Martinovich, Attorney at Law, Michael D, Grahn, Attorney at Law, and Ariella Rosenberg

We see the headline everyday in newspapers around the country: Motor vehicle accident, 2 hurt, 1 killed, driving under the influence suspected. We know the law has changed in the area of driving under the influence of alcohol and/or drugs. The consequences of such a criminal conviction are increasing in severity. As serious as the criminal consequences, drunk driving charges have the potential to be even more serious for a member of the United States Armed Forces. Upon criminal conviction, military members are subject to consequences such as loss of security clearance, revocation of driving privileges, and loss of military rank and consequently loss of wages. Given that offenses committed by members of the military fall under a separate code known as the Uniform Code of Military Justice (UCMJ), it can sometimes be difficult to understand how a DUI under military jurisdiction differs from one prosecuted within the civilian criminal court system. Due to the complexity of this issue, it is especially important that service members facing a DUI / DWI in military court seek the counsel of an attorney experienced both in criminal and military law. At the outset, it is important to understand who is, and who is not, subject to the UCMJ. Members of the Army National Guard are subject to civilian criminal law, even if they are on an active duty base. 10 U.S.C. 802. The only time that a National Guard member is subject to the UCMJ is when they are in federal service. For members of the armed forces who are on duty at the time of offense, the UCMJ applies. Even if a member is on non-duty status at the time of the offense, the UCMJ can still apply, depending on the provisions of state military law.

Members of a reserve component are also subject to the UCMJ when on inactive-duty training, as are:

  • Retired members of a regular component of the armed forces who are entitled to pay, retired members of a reserve component who are receiving hospitalization from an armed force;
  • Persons in custody of the armed forces serving a sentence imposed by a court-martial, members of the National Oceanic and Atmospheric Administration;
  • Members of the Public Health Service;
  • Members of other organizations when assigned to and serving with the armed forces, members of the armed forces awaiting discharge after expiration of their terms of enlistment;
  • Volunteers from the time of their muster or acceptance into the armed forces, and;
  • In time of war, persons serving with or accompanying an armed force in the field.

Military Court System

10 U.S.C. 802. The military criminal court system, although similar in many ways to the civilian criminal court system, still differs in several important aspects. Unlike civilian courts, the armed forces do not have permanently established trial courts for prosecuting military members. Courts-martial (military criminal trial courts) are convened on an as-needed basis by Convening Authorities, who are military commanders. The commander-in-charge designates the type of court-martial that is to be established (summary, special, or general) and designates when and where the court-martial will meet. 10 U.S.C. 816-821.

The prosecuting attorney in a court-martial proceeding prosecutes in the name of the United States, and, as in civilian courts, the accused has the right to defense counsel. 10 U.S.C. 838. Charged individuals are assigned a military officer for their defense, but reserve the right to choose their own civilian counsel. As in the civilian court system, the accused under a court-martial is presumed innocent until proven guilty beyond a reasonable doubt. However, in the case of a trial by jury, there is only the need for a two-thirds vote on the part of the court-martial jury members to find the accused guilty. 10 U.S.C. 852. The civilian criminal court system requires unanimity in the verdicts of its juries, meaning all jurors must agree in the verdict of guilty or not guilty. If there can be no such agreement, then a mis-trial can be declared and a new trial will be ordered by the court.

DUI and Military Personnel

The UCMJ specifically addresses the crime of drunken or reckless driving.

Any person subject to this chapter who (1) operates or physically controls any vehicle, aircraft or vessel in a reckless or wanton manner or while impaired by a substance or (2) operates or is in actual physical control of any vehicle, aircraft, or vessel while drunk or when the alcohol in the persons blood or breath is in excess of the applicable limit under subsection (b), shall be punished as a court-martial may direct. 10 U.S.C. 911.

Under this code, the applicable limit on the alcohol concentration in a persons blood or breath is either the blood alcohol content limit under the law of the state in which the conduct occurred (for operation of a vehicle, aircraft, or vessel in the United States), or, for operation of a vehicle, aircraft, or vessel outside the United States, the maximum blood alcohol content limit is .10 grams of alcohol per 100 milliliters of blood. For the purposes of this code, the United States includes the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American Samoa. 10 U.S.C. 911.

It should be noted, however, that a blood alcohol concentration below the applicable legal limit does not guarantee that there will be no drunk-driving conviction. For military justice purposes, intoxication is the presence in the blood of any amount of alcohol sufficient to sensibly impair the rational exercise of the mental and physical faculties required for vehicle operation. Thus, the results of chemical tests indicating the presence of alcohol in the blood will be considered along with other evidence of intoxication, such as the observations of law enforcement officers and the manner in which the accused was driving.

Military DUI or DWI Sentencing

The sentencing in a military DUI / DWI case also differs from the sentencing process in the civilian criminal court system. For instance, probation is not possible in military cases because a court-martial is a temporary entity created to resolve a particular case. Therefore, it is adjourned (closed and ended) when the sentence is imposed. Consequently, there is no ability to conduct continued supervision (i.e., probation). Military sentences can include confinement, dishonorable discharge, reduction in rank, reduction in pay grade, forfeiture of pay and allowances, fine, and reprimand. There are no sentencing guidelines or minimum sentence requirements for DUI / DWI cases tried in military courts. Thus, one is literally at the mercy of the military court.

Although the military justice system affords individuals the same basic rights as the civilian system, the seriousness of a DUI / DWI charge and the potential of grave military sentences necessitates that a person accused of a DUI / DWI obtain the counsel of an attorney who understands both the state criminal law and military law. Due to the relatively faster pace of military courts, it is imperative to consult an attorney as quickly as possible to insure that proper counsel and advice is received early enough in the process so that an accused can benefit from such counsel.


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