The Navy’s rule forcing sailors to “promptly” tell their commanding officers if they have been arrested for an off-base drunken-driving violation is unconstitutional, the Navy and Marine Corps’s highest military judges have ruled.
The requirement, which dates back to 1999, forces sailors to incriminate themselves, a violation of the Fifth Amendment “for which no exemption exists,” according to the Nov. 25 ruling from the Navy-Marine Corps Court of Criminal Appeal.
The case could force the Navy to change its policy and also prompt officials to reconsider some past punishments for drunken driving or failure to report a civilian driving-while-intoxicated arrest.
“There is no doubt that this case will be taken up to the Court of Appeals for the Armed Forces, so we’ll have to see what shakes out,” said Michael Navarre, a former Navy judge advocate who is now a lawyer in Washington, D.C.
Navy officials declined to comment on the ruling. The Navy has 30 days to decide whether it will take the case to the CAAF, which is the last stop before the U.S. Supreme Court.
The case began when a Maryland State trooper arrested Chief Aviation Electrician’s Mate David Serianne in February for allegedly driving or attempting to drive while intoxicated, court records show.
Serianne allegedly failed to report that arrest to his command, which eventually learned about it and charged him with Article 111, drunken driving, and Article 92, failure to obey an order or regulation.
Before that case went to trial, Serianne’s attorney claimed the Article 92 charge was unconstitutional and urged the judge, Capt. Paul Gamble, to dismiss it. The judge agreed.
Judges from the Navy-Marine Corps Court of Criminal Appeals unanimously supported Gamble’s ruling, yet found different reasons to criticize the Navy regulation, known as OpNav Instruction 5350.4C.
The majority of the court said the regulation violates the Fifth Amendment. However, one judge, said the Navy should be able to force sailors to report civilian drunken-driving arrests, but should not use that for criminal charges. The Navy could use that information only for “administrative purposes.”
“I … believe that the instruction serves a legitimate administrative purpose to ensure that the information regarding drug or alcohol related offenses is properly brought to the attention of commanders who have the responsibility to ensure appropriate administrative action is taken, e.g. report or reassess the member’s qualifications for promotion or to hold a security clearance,” wrote Marine Lt. Col. Raymond Beal, in a concurring opinion.
But, Beal wrote, “the Fifth Amendment right against self-incrimination would have barred his prosecution for the underlying misconduct.”
That suggests sailors would face a situation similar to the rules that apply to mishap investigations, in which sailors cannot be charged for revealing that their own misconduct contributed to the mishap.
“Formal mishap investigations can promise witnesses that their statements won’t be used in disciplinary proceedings. Mishap boards do that to get to the truth. They want people to be truthful so they can figure out how to fix the problem or prevent future mishaps,” Navarre, the attorney, said.
The ruling could open the door for a sailor or former sailor to fight past convictions for failing to report a DWI, or military convictions stemming from a self-reported DWI.
“The question would be: Does he have a harm that can be redressed? Is there some relief, money or otherwise, that a court can give the sailor as a remedy for what may be an unconstitutional charge?” Navarre said, describing the scenario as a “thorny issue.”
The Marine Corps does not have any servicewide regulation requiring Marines to self-report civilian arrests, a Marine Corps spokesman said.
The Navy will have an uphill battle if it appeals because the recent ruling was unanimous in favor or Serianne, Navarre said.
“While a few judges expressed differing reasons for their decision, every judge agreed that the policy as written should be struck down. That no judge dissented is somewhat striking,” he said.
Filed under: Civil Liberties, Drugs, Military Industrial Complex, Privacy Tagged: | alcohol, Article 111, Article 92, DUI, Fifth Amendment, Maryland State Police, Michael Navarre, Navy, Navy-Marine Corps Court of Criminal Appeal, OpNav Instruction 5350.4C, Raymond Beal, Supreme Court, USMC