This is a question we hear a lot from new clients. Here at San Diego Defenders, we practice in an area with a Naval and Marine Base. The surrounding communities are flush with active duty service men, woman and those soon to retire. Whether you are in the Navy, Marines, Army, Air Force or Coast Guard, if you get arrested for a DUI and your Command does not know about the arrest, you have to decide if you are going to self report the arrest.
The answer is not as cut and dry as your command would have you believe. And whether you hire Dan Smith and Jon Pettis at www.SanDiegoDefenders.com to represent you if you are arrested, you are most likely better off actually retaining a private attorney (or a least a lawyer that has a clue as to Military Regulations). We always say that if your attorney does not ask about your rank (or status as an E-6 for instance and whether you are up for promotion), then that may not be the law firm you want to hire.
You do not have to report the DUI/DWI arrest
The Armed Services has regulations that a serviceman is required to report any arrest, and that includes any DUI. However, in 2009, in a case before the United States Navy-Marine Corps Court of Criminal Appeals Washington D.C., the Court ruled that the requirement was unconstitutional. In that case, a Navy Chief,( E-7), had been arrested for a DUI/DWI. He did not report it to his command as required by Navy Regulations, OPNAVINST 5350.4C, required him to do so. So, when his command found out, they sought to court martial him for dereliction of duty under Article 92, Uniform Code of Military Justice.
The Judge at the court martial dismissed the charges ruling that the requirement under OPNAVINST 5350.4C violated the service member’s Fifth Amendment rights. Ultimately, the United States Navy-Marine Corps Court of Criminal Appeal agreed. (NMCCA 200900330 Review Pursuant to Article 62(b), Uniform Code of Military Justice, 10 U.S.C. 862(b).) So, it seems as the answer is no.
But, be careful as there are still several issues to understand.
- ARREST v. CONVICTION - This case involved the failure to report an arrest. The reason the self reporting requirement was deemed unconstitutional was because there had not yet been a conviction, so, the Fifth Amendment rights that protect us all from being compelled to say anything that could be used in court against us still applied. Once there has been a conviction, meaning you have been sentenced, that protection disappears. So, once you have been convicted, you must report it.
- COURT MARTIAL v. DENIAL OF PROMOTION – Another thing to remember, even if you cannot be punished specifically for not reporting an arrest to your command, the same people who will be angry that you did not report it to them will also be involved in your subsequent reviews and opportunity for advancement. Just because they cannot court martial you for failing to report the arrest does not mean they will not hold it against you later.
- ENLISTED v. OFFICERS – It would seem that the same rules would apply to Officers as well. The Constitution protects them as well. But, keep in mind, when there is a conviction, while an enlisted person may still be able to avoid being separated because of a DUI/DWI, an officer will almost certainly not be able to keep their commission as any violation of law can be a basis for losing it.
Further protect yourself with legal representation
To further protect yourself from any negative ramifications from choosing not to report your DUI/DWI, it can be very useful to retain private legal representation right away. In other words, hire a good lawyer. Any competent lawyer will tell you not to discuss your case in any way, even that you got arrested, with ANYONE, including your command. The reason for this is that anything you tell anybody but your lawyer or someone who works for your lawyer could be used in court. At San Diego Defenders, that is the first bit of advice – don’t ask for the advice of fellow servicemen. Remember “misery loves company”!
We have had clients who have gotten arrested for DUI and came to us before self reporting. They were told NOT to report the incident to their command unless and until there was a conviction. They were also told that if they were ever asked why they did not report it, they should explain that they had hired an attorney who advised them not to tell anyone anything about the case. In some cases, they were found not guilty or the case was dismissed and it never had to be reported. In the cases where they did get a conviction for a DUI, a JAG investigator contacted San Diego Defender’s office to confirm we had advised our client not to say anything to anyone. Once we did, because they were relying on legal advice, no action was taken against them for failing to self report. Keep in mind that that does not guarantee no negative consequences for the actual offense.
To learn more about how the Navy JAG conducts its investigations and your rights visit http://www.jag.navy/legal-services/defense-services.htm.
To get incite into how the Army performs its informal investigations and your rights visit http://armypubs.army.mil/epubs/pdf/r15_6.pdf
If you want to call us for further information please dial (619) 258-8888 anytime 24/7 to speak directly with Dan Smith, supervising attorney for San Diego Defenders, APC.