The recent news coverage of Bulldogs winger Josh Ado-Carr’s (allegedly) failed roadside drug test brings into focus the laws in NSW surrounding driving and illicit drugs.
Police have the power, under schedule 3 of the Road Transport Act 2013, to require a person to submit to one or more oral fluid tests for prescribed illicit drugs if the officer has reasonable cause to believe that the person is or was driving a motor vehicle on a road in NSW.
These oral fluid tests can detect the presence of:
In Josh Ado-Carr’s case, police appear to have pulled him over because his vehicle—not his own—was registered to a person with previous misdemeanours (according to the news coverage).
According to media reports, Josh was then subjected to an oral fluid test, which came back positive for cocaine.
In those circumstances, Police usually arrest a person to obtain further oral fluid samples to enable an oral fluid analysis. Police then have the power under section 148G of the Road Transport Act 2013 to prohibit the person from driving for 24 hours and require the person to hand over the keys to their car.
According to media reports, after Ado-Carr allegedly failed the first test, Police were then called to an urgent job, and he was allowed to drive off, uncharged.
It’s not unusual or uncommon for someone who fails a roadside drug test not to be charged immediately. The oral fluid analysis from the second sample requires time for the lab results to be processed, and police generally delay charging the individual until those results are confirmed.
Will Josh Ado-Carr be Charged?
Police can charge a person based on one oral fluid test.
Section 111 of the Road Transport Act 2013 makes it an offence for a person to drive a motor vehicle while there is a prescribed illicit drug (which includes cannabis, ecstasy/MDMA or cocaine) in their oral fluid. The prosecution, if Ado-Carr was to be charged, would need to be able to prove that cocaine was present in his oral fluid beyond a reasonable doubt. Absent an oral fluid analysis, this may be difficult, but not impossible to do.
Can Josh Ado-Carr argue he Didn’t Take Cocaine?
The recent NSW Court of Criminal Appeal case of R v Narouz [2024] NSWCCA 14 involved circumstances where the appellant, who returned a positive oral fluid test for cocaine when pulled over by Police, denying that he had taken any cocaine at any stage, and arguing that a possible explanation for its presence in his oral fluid was him drinking from a Powerade bottle left on the floor of his car. The Powerade bottle, so the explanation went, may have been drunk by someone else who had used cocaine. In the Local Court, the appellant had relied on the defence of honest and reasonable mistake: he had honestly and reasonably believed that there was not an illicit drug present in his oral fluid at the time he drove.
Unfortunately for the appellant in that case, and Josh Ado-Carr, if he is charged with contravening section 111 of the Road Transport Act 2013, the NSW Court of Criminal Appeal found that this offence is an absolute liability offence. That means that it doesn’t matter if you didn’t know you had an illicit substance in your oral fluid when you drove, even if you unintentionally ingested the drug and couldn’t have known it was in your system: if it’s proven to be there, that’s the end of the story.
If you’re facing similar legal challenges or need expert advice on criminal defence, Jackson John Defence Lawyers can provide experienced representation to help you navigate the complexities of the law. Contact us today for a consultation.
[1] An absolute liability offence means that the prosecution does not need to prove intent, knowledge, or recklessness in committing the offence. In the context of the NSW Court of Criminal Appeal’s finding, this means that it is irrelevant to the offence in question whether the individual was aware or had any intention of having an illicit substance in their system. If the substance is detected, the person is liable, regardless of their knowledge or intent at the time.
