(dissenting):
I recognize that we may well be the only jurisdiction which permits the criminal conviction of a citizen for drug use based solely on a laboratory test of that citizen’s urine. But cf. United States v. Murphy, 23 MJ 310 (CMA 1987). Therefore, we must be ever vigilant to the truth of the evidence. However, if we are going to have a urinalysis program, we must be prepared to accept simple facts dealing with the chemical properties of drugs.
The simple facts of the matter are:
1. When cocaine is ingested (used) by a human being, it creates metabolites.
2. Two of the metabolites which are created are benzoylecgonine (BE) and ecgoninemethylester (EME).
3. EME dissipates from the human body faster than BE.
4. BE can be produced by mixing cocaine directly into urine if the PH of the urine is greater than 6. EME can only be produced by the body.
Based on these simple facts, I conclude that the presence of EME in a urine sample means that whoever gave it consumed cocaine. If BE is present in the sample, I conclude either that (a) whoever gave the sample consumed cocaine, or (b) the cocaine was added to the sample after it left the body.
In either case, the chain of custody of the sample is the critical issue. The Government must prove beyond a reasonable doubt that the accused provided the sample and that it was unadulterated at the time of the test. If the Government is successful in doing that, it proves that the accused used cocaine.
The absence of EME is not the decisive factor if BE is present in the sample and the chain of custody is established. In other words, if appellant had walked into the laboratory and given a urine sample and the sample tested positive only for BE, proof beyond a reasonable doubt that he used cocaine is established. The lack of EME only means that it has been dissipated from the donor’s system. An unadulterated sample delivered to a laboratory has the very same legal result. Thus, in the instant case, my concern is the integrity of the chain of custody and not the lack of EME in the sample. If the sample was unadulterated, the absence of EME means only that the cocaine had dissipated from the system before the time of the test.
From my review of the record, I am satisfied that there is sufficient evidence from which a rational factfinder can conclude beyond a reasonable doubt that appellant used cocaine. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).