United States v. Skrede

(dissenting): I would affirm based on the analysis of the Court of Criminal Appeals in this case and based on my separate opinion in United States v. Sweeney, 70 M.J. 296, 306-13 (C.A.A.F. 2011) (Baker, J., joined by Stucky, J., concurring in part and dissenting in part).

(concurring in the result): I affirm my dissenting vote in United States v. Sweeney, 70 M.J. 296, 306-13 (C.A.A.F. 2011), (Baker, J., joined by Stucky, J., concurring in part and dissenting in part). I write separately given a notable *359factual difference from Sweeney. Although the accused’s first test was conducted pursuant to a random urinalysis test, the second test was conducted because the accused’s first test was positive. It is not entirely clear whether this fact would change the primary purpose of the second test or the statements made pursuant thereto. Given this difference, and because this Court is not otherwise considering its significance, I agree that setting aside the United States Air Force Court of Criminal Appeals’ decision and returning the record to the Judge Advocate General is the most appropriate option.

CCA 2009-09. On further consideration of the granted issues (69 M.J. 176-77 (C.A.A.F. 2010)), it is ordered that the decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for further proceedings consistent with this Court’s decisions in United States v. Sweeney, 70 M.J. 296 (C.A.A.F. 2011), United States v. Blazier, 69 M.J. 218 (C.A.A.F. 2010), and United States v. Blazier, 68 M.J. 439 (C.A.A.F. 2010).2