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OIC question IRT NJP issues

Flying Low

Flying Low

Yea sure or Yes Sir?
pilot
Contributor
While deployed as the OIC I do not retain NJP authority. It rests with either with the CO of the ship while I'm embarked or the Commodore while ashore. If security ask me to compel one of my sailors to give blood to determine BAC, do I have that authority? In this scenario it is overseas and does not involve a felony or DUI type issue.
 
Flying Low said:
While deployed as the OIC I do not retain NJP authority. It rests with either with the CO of the ship while I'm embarked or the Commodore while ashore. If security ask me to compel one of my sailors to give blood to determine BAC, do I have that authority? In this scenario it is overseas and does not involve a felony or DUI type issue.
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Can you ask the staff JAG?
 
Pushed it to the Jag. Couldn't get a solid answer that I could see in writing. It was one of those, "Yeah, I think you can" but no one can prove it.
 
Not sure how applicable it would be, but if I remember correctly from my CDO days you needed CO's permission to conduct a search and I THINK blood fell under that umbrella but can't recall the specifics of stuff like fit for duty screens (purview of medical, not security).
 
You could always get the person to "voluntarily" submit to a search. Consent search is always WAAAAAAY easier.
 
^ yes - do this - I am shocked at the number of people that will submit to a voluntary search.

I would also ask - why do you need a straight BAC? Having a high BAC without causing an ARI or DUI isn't necessarily against the UCMJ, unless direct orders have stipulated a limit or the sailor is going on watch / shift. In that case, your squadron probably has an instruction or a precedent (ask your XO).

In either case, don't use the equipment issued to each command - it won't stand up due to accuracy - get a legit test from security or medical. And you want to let the CO or CDRE handle the case - they have higher punishment authorities.

You can pm me if you need more info.
 
Not a JAG, just a former Legal O, but I believe that a blood sample is considered a contraband search. Thus all 4th Amendment rules apply: probable cause that a crime has been committed, reasonable belief that evidence of the crime will be in the individual's blood, and a search authorization from the CO. I know that this is why urinalyses are random; it gets around 4th amendment worries about targeting people where they have a reasonable expectation of privacy, i.e their bodies.

Of course, if a person's BAC is an issue, a fit for duty screening is also an option, yes? But I would seriously make sure you're running this by a JAG, not the Internet. If the JAG is not giving you straight answers; that's bullshit. It's their job. Find another JAG. They're usually happy to help as long as advising you doesn't keep them from being able to ethically advise their boss at a later date. I had about 3 I could contact when I was new in that job. I tried to spread the dumb questions around.
 
Obviously, talk to a JAG, like everyone else says, but here's another data point that I've confirmed with a JAG...

Even as a CO, you still need NJP authority to compel even a standard urinalysis. If a CO doesn't have NJP authority (yes, they exist), then that CO needs to fall onto someone of a higher echelon with the authority. All that said, if the person didn't consent to a voluntary search, I wouldn't do it myself as an OIC if you're looking to nail someone.
 
Gatordev said:
Obviously, talk to a JAG, like everyone else says, but here's another data point that I've confirmed with a JAG...

Even as a CO, you still need NJP authority to compel even a standard urinalysis. If a CO doesn't have NJP authority (yes, they exist), then that CO needs to fall onto someone of a higher echelon with the authority. All that said, if the person didn't consent to a voluntary search, I wouldn't do it myself as an OIC if you're looking to nail someone.
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Yall've actually got me digging out Big Red and the MCM. Per the Handbook for Military Justice and Civil Procedure . . .
The Military Rules of Evidence treat the taking of all body fluids as nontestimonial and neutral acts and thus not
protected by Article 31. Although the extraction of body fluids no longer falls within the purview of Article 31, the laws concerning search and seizure and inspection remain applicable, and compliance with Mil.R.Evid. 312 is a
prerequisite for the admissibility in court of involuntarily obtained body fluid samples.
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So apparently, you don't have to read them 31(b) rights, FWIW. Now onto Military Rules of Evidence, Rule 312(d):
Extraction of body fluids. Nonconsensual extraction of body fluids, including blood and urine, may be made from the body of an individual pursuant to a search warrant or a search authorization under Mil. R. Evid. 315. Nonconsensual extraction of body fluids may be made without such warrant or authorization, notwithstanding Mil. R. Evid. 315 (g) , only when there is clear indication that evidence of crime will be found and that there is reason to believe that the delay that would result if a warrant or authorization were sought could result in the destruction of the evidence. Involuntary extraction of body fluids under this rule must be done in a reasonable fashion by a person with appropriate medical qualifications.
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So who can authorize a valid search authorization according to M.R.E. 315? Well, it says "A commander or other person serving in a position designated by the Secretary concerned as either a position analogous to an officer in charge or a position of command, who has control over the place where the property or person to be searched is situated or found, or, if that place is not under military control, having control over persons subject to military law or the law of war." That seems vague, so I went to the JAGMAN and all it had was search authorization forms. So, yeah. There's the rules, and not being a lawyer, I suggest that you whoop your JAG upside the head with that and get a ruling from him/her. I would think that "who is authorized to sign a search authorization in this command" would be relatively straightforward, but idiots are everywhere.

I'm not even on active duty anymore and I can't get the Legal O stink off me. Sheesh. Maybe I should just drop this job search thing and just take the LSAT. :)
 
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Interesting. I was an "OIC" (had "Acting" authority and all that) and worked with a person in "a position of command." When we directly asked the JAG about this, they said we couldn't do an urinalysis. It had to fall under someone with NJP authority. Well...to be fair, they may have said it "should" fall under someone with NJP authority, but talk about legal speak...

Still, interesting stuff.
 
An OIC can have NJP authority, but the OIC of their unit must be listed in the SDNL.
 
Gatordev said:
Interesting. I was an "OIC" (had "Acting" authority and all that) and worked with a person in "a position of command." When we directly asked the JAG about this, they said we couldn't do an urinalysis. It had to fall under someone with NJP authority. Well...to be fair, they may have said it "should" fall under someone with NJP authority, but talk about legal speak...

Still, interesting stuff.
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I think the key words are a position "designated by the secretary concerned." In DoN, that's usually code for "look in the JAGMAN." But if not, there might be a SECNAVINST or other list lurking somewhere.
 
hscs said:
An OIC can have NJP authority, but the OIC of their unit must be listed in the SDNL.
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Gotcha. I think the key point is that it has to be at the right echelon to grant that authority. Where I was, we were not at that level, so neither I or the CO had the authority.
 
Thanks for the replies. Here is the hypothetical situation. Late on a Saturday night, a sailor gets drunk at base bar (Oconus). 2 other sailors take him to his room on base. Later, the sailor leaves room, and causes some trouble. No assaults, etc. Just the drunk in public type issues. The MA's pick him up. The MA's can not get a good breathalyzer. The push up their chain to get a blood sample. The base chain pushes back and says it has to come from the OIC. The OIC gets a call at 4am asking for permission to determine how drunk the sailor is at the time. OIC says no for various reasons, one being the OIC does not have NJP authority.

Now in this hypothetical situation the OIC is catching extreme heat from various O-6 types for not allowing the blood sample, whether legal or not. OIC should have said yes and sort it out later. I could go on, but you get the idea.
 
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