What happens when a civilian goes onto a military base and gets stopped for a DUI? Who prosecutes the case? Is it the US Attorneys’ Office, the Army, or the State? 

You are probably thinking to yourself it cannot be the Army because that would be a violation of posse comitatus, which is the law against using the American military on American soil. Up until just recently I thought the exact same thing. I naturally assumed that the Army could not prosecute civilians under any circumstances, except maybe under martial law as in the Civil War. I thought that when a civilian was arrested on a military base, the US Attorneys’ Office would prosecute. However, that is not the case. When a civilian is arrested for DUI on a military base in Arizona, the Army investigates and prosecutes the DUI suspect. The Army police will investigate the matter just like any other civilian police force, including field sobriety and chemical test, and then hand the prosecution over to Army JAG. The US Atty.’s Office will not directly prosecute the case. The prosecution will not take place in an Army courtroom or court-martial but will take place in the federal courthouse.  And while the assigned prosecutor is an Army JAG officer, and the overall supervising prosecutor is the US Atty. for the District. In other words, civilian prosecutor supervises the military jag officer.

When the Army prosecutor goes to civilian court he is not in uniform and will instead wear a civilian suit and tie.  The Army will prosecute under state law, not under federal or Army law. A civilian DUI suspect will be treated just the same as if he was stopped on a city street and arrested by local police department.  The federal judge will also follow state sentencing guidelines and the DUI conviction will be reported to the Department of Motor Vehicles as in any other DUI conviction.

Interestingly, posse comitatus (18 USC 1385) does not apply because the stop and arrest in a military base.  But a military police office could not stop and detain a DUI suspect if the military officer was off base, for example, on his way home off of the base.  In those circumstances, the military officer would have to report the matter to local, civilian law enforcement.

Vladimir Gagic, Esq.



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