Josh Addo-Carr – Your Questions Answered by a Criminal Lawyer

by Kate | Sep 10, 2024 | Case Studies, Criminal Law, Drug Offences, Legal Advice

Understanding the Legal Implications of the Josh Addo-Carr Drug Test Case

The start of the NRL Finals series for 2024 has been marred with scandal after Bulldogs winger Josh Addo-Carr was pulled over on Friday night for a roadside drug test. Rafton Family Lawyer’s Senior Criminal Law Solicitor, Lara Menon, is here to answer everyone’s questions and dispel some of the myths circulating.

What do we know so far?

On Friday 6 September, NSW Police Officers from Auburn PAC stopped a car on the road for the purposes of a random drug test. The driver of the vehicle was 29-year-old Bulldogs superstar Josh Addo-Carr. NSW Police allege that the roadside test indicated a positive reading for Cocaine, whereas Josh Addo-Carr has told Bulldogs General Manager that the result was inconclusive. A secondary sample has been sent to the lab for testing. Josh Addo-Carr was permitted to drive away.

What does the law say?

NSW Police have the power to require a person who is driving a vehicle on a road to submit to an oral fluid test for illicit drugs in accordance with Clause 6 of Schedule 3 of the Road Transport Act 2013 (NSW). If this roadside test indicates a positive result, meaning that it appears as though the driver has illicit drugs in their oral fluid, they will be placed under arrest for the purposes of providing an oral fluid sample to enable an oral fluid analysis to be conducted by an authorised laboratory. If the laboratory results indicate the presence of illicit substances, NSW Police will issue a penalty notice or Court Attendance Notice.

In NSW, it is an offence to drive a motor vehicle, or occupy the passenger seat with a learner driver, with the presence of an illicit substance in their oral fluid, urine or blood under Section 111(1) of the Road Transport Act 2013 (NSW). This offence is punishable by a fine of $682, or a maximum court imposed fine of $2,200 in the instance of a first offence. NSW Police have the discretion to deal with the matter by way of a penalty notice (similar to a speeding fine) rather than issuing a Court Attendance Notice if the person has had no previous drug or alcohol related offences in the previous five (5) years. Following payment of the fine, or issuance of an overdue penalty notice, Transport for NSW will suspend the driver’s licence for a period of three months. If the driver elects to have the matter heard by a Court, the maximum disqualification period increases to six (6) months and the fine increases to a maximum of $2,200.

However, a more serious offence is the offence of driving while under the influence of an illicit substance under Section 112 of the Road Transport Act 2013 (NSW). This offence is punishable by way of a $3,300 fine and/or imprisonment for up to 18 months. In order to be charged with this offence, NSW Police need to be able to prove an impairment to the driver caused by the drug in order to satisfy that the driver was “under the influence”. Following a charge by NSW Police of driving while under the influence, Section 224(1)(b) of the Road Transport Act 2013 (NSW), NSW Police have the power to immediately suspend the driver’s licence until such time as the matter is determined by the Court. This offence will be charged by way of Court Attendance Notice and not a Penalty Notice due to the seriousness of the offence.

If he was allowed to drive away, he must be innocent

While defendants in NSW have the benefit of the presumption of innocence until proven guilty, the fact that Addo-Carr was permitted to drive following the test does not prove his innocence. As outlined above, if NSW Police are alleging that Addo-Carr drove with the presence of illicit drugs rather than under the influence, no power exists for NSW Police to suspend a driver’s licence for the suspicion of driving with the presence of drugs. If NSW Police were alleging that Addo-Carr drove while under the influence of illicit drugs and charged him with such an offence, then it is likely that NSW Police would immediately suspend his licence. The fact that he was permitted to drive away, while not advisable due to the risk of being pulled over again and liable for a subsequent offence, it does not unequivocally prove that Addo-Carr will not later be charged with an offence. If the laboratory returns a positive result to the presence of drugs, Addo-Carr will likely receive a penalty notice if it is his first offence.

Addo-Carr has now submitted to a blood test. Can the NSW Police use this?

The short answer is no. For the purposes of an offence in relation to the presence of illicit drugs, the sample used for evidence must be taken within 4 hours of driving, unless the defendant can otherwise prove the absence of the drug while driving. It is understood that Addo-Carr went to the team Doctor on Monday morning for a blood test, which would be approximately 50 hours from the time of driving. In order to prove the absence of drugs in his system while driving on Friday night, Addo-Carr would likely need to obtain expert evidence which analyses both the oral fluid and blood test results.