Vaping, with its cartoonishly-large emissions of “smoke”, is becoming a ubiquitous part of American society. Much like CBD oil, it was only a matter of time before the vape pen made an appearance in security clearance denial and revocation cases.  It now has – and not because using tobacco is prohibited under the National Adjudicative Guidelines for Security Clearances. Rather, the issue we’re seeing, perhaps predictably, is that the vape pen is becoming an alternative delivery mechanism for marijuana.  

Marijuana is Marijuana No Matter How It Is Ingested

If you know you’re using a vape pen to consume marijuana, there’s nothing different about it in the eyes of security officials than smoking a joint or eating a marijuana brownie. The Bill Clinton defense of “I didn’t inhale” isn’t going to save you – plenty of applicants have tried it already – but a thoughtful and sincerely articulated case for mitigation just might.  

I Didn’t Know It Was Marijuana…

On the other hand, what if you didn’t know at the time you inhaled that the vape pen contained anything but tobacco? Surprisingly, we’ve seen this fact pattern twice in recent months. The common circumstance in both cases was that the individual was at a party, accepted a vape pen being passed around on the assumption that it contained only tobacco, and subsequently realized his or her mistake.  

Putting aside for a moment the wisdom of swapping saliva with strangers, this isn’t necessarily a far-fetched scenario. A mix of alcohol, a festive atmosphere, and perhaps cigarette smoke in the background obscuring the marijuana stench could create a situation in which someone conceivably only becomes aware that they’re vaping marijuana after they’ve ingested the drug.  

If this sounds like last weekend, or if you find yourself in a similar scenario down the road, rest assured that the unintentional toker is not generally viewed as a national security risk. However, the burden of proof will be on you to convincingly demonstrate that your surprise encounter with marijuana was just that: a surprise.  

Key Steps to Protect Your Clearance

In order to prove your marijuana vaping was a surprise, it means a few things:

  1. Promptly self-reporting the incident to security officials instead of being caught testing positive on a random drug test.
  2. Demonstrating that you don’t knowingly associate with drug users or have since disassociated yourself from them.
  3. Securing whatever corroborating evidence you can regarding your lack of knowledge. Ideally, that corroborating evidence would come in the form of sworn affidavits by others present at the event who can attest to the circumstances under which the consumption inadvertently occurred.  

Ultimately, whether your defense carries the day is largely dependent upon reasonableness. If a reasonable person in your shoes wouldn’t have known they were consuming marijuana until it was too late, you will most likely have satisfied your burden of proof.  

This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation. 

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Security Clearance Attorney Sean M. Bigley represents clients worldwide in security clearance denials and revocations. He is a former investigator for the U.S. Office of Personnel Management. For more information, please visit www.bigleylaw.com