Driving and Cannabis in Spain: The Criminalization Strategy (2/2)

CANNABIS IN SPAIN This is the second part of the article on cannabis and driving in Spain. We analyse the reasons justifying the repressive drug testing strategy and advise you on how to protect yourself, with practical tips for if you get pulled over.

In the first part of this article we saw how the Spanish Government represses cannabis users under the pretext that cannabis is dangerous for driving. We will now discuss the consequences of this strategy and its use as a penalty tax against users of the plant as well as the legal attempts that are being made to stop it. And just in case, we will provide some tips for those who are confronted with anti-drug road checks.

The possibility of testing positive for cannabis at the wheel many hours after consumption is having a devastating effect on the Spanish cannabis community. The consequences of testing positive are harsh: a 1.000-Euro fine and a deduction of six out of twelve points from the driver’s permit. If there are signs of being under the effects of the plant, the offense may become a crime punishable with prison. If an accident occurs, even if it isn’t one’s fault, criminal proceedings will very likely ensue. To this we must add that insurance companies have begun to deny coverage to those who have tested positive for drugs.

Forced to abstain from either cannabis or driving

Faced with this situation, many users who need to drive in their daily lives, especially for work, have stopped consuming cannabis altogether. Others have stopped driving, but this is unviable for most people. In practice, this strategy is directly criminalizing those of us who use cannabis. In a country where cannabis use was never a crime, linking it to crimes against traffic safety is having the perverse effect of imposing abstinence on many areas of the population; something which traditional administrative means of repression (with hundreds of thousands of fines per year) were unable to achieve.

The current Rajoy government has made it clear that, if possible, it will go further with repression. At the beginning of 2017 it announced that it was preparing a new test that would avoid having the need for a second test in the laboratory, and that it would multiply the number of tests by ten. Luckily, soon after, López-Rivadulla [Professor at the University Santiago de Compostela, Department of Forensic Sciences – ed.] himself denied that possibility. Nonetheless, there is another reform that could succeed: The proposal that those who test positive for alcohol or drugs a second time should lose their driver’s permit permanently. This is something that, in a society so dependent on driving, could pose very serious problems.

The Dräger Drugtest 5000: A Money-Making Machine

Another perverse effect of this strategy is the creation of a punitive tax against cannabis users, who are the great majority of consumers of illegal drugs. When presenting their widely used product the Dräger Drugtest 5000 in town halls and autonomous communities, Dräger themselves emphasise the large amounts of money that can be collected through fines. On their website, the company highlights that one of the main advantages of the test is the “extremely low detection limit for THC as the main active ingredient of cannabis.” This means that Dräger is offering a device that is designed for hunting cannabis users regardless of whether they pose a real danger whilst driving or not.

To be able to catch more drivers on cannabis, Dräger set the cut-off point for detection at 5 nanograms of THC per millimetre of saliva for on-site tests, compared to the 20 ng/ml limit for opiates and cocaine or the 50 ng/ml limit for amphetamines. Interestingly, when government officials talk about the issue in public, they say that the cut-off point for cannabis is 25 ng/ml, when both the manufacturer and the evaluation studies commissioned by the government itself deny it. In laboratory tests, the cut-off point drops even further: only 1 ng/ml for cannabis compared to 5 ng/ml for heroin, 20 ng/ml for morphine or 25 ng/ml for MDMA, which is not proportional to the current minimal doses. It must be noted that in Spanish legislation the sample analysed on site is considered to be a simple indication, while the sample analysed in the laboratory, using levels of detection that are five times lower, is considered evidence. Keeping in mind that there is no clear correlation between the levels of cannabis in the blood or in saliva, we are in a position of total defencelessness.

Medicinal cannabis Use, CBD, and driving

A photograph showing a rolled joint, marijuana buds, and car keys.

To this bleak picture we must add the situation of people who use cannabis therapeutically. The Traffic Law does not penalize “substances that are used under medical prescription and for therapeutic reasons.” The problem is that the only cannabis drug authorized in Spain is Sativex©, and it is only prescribed as a second option in cases of multiple sclerosis. This means only a few of the thousands of medicinal cannabis users in Spain will be able to benefit from that exception. In addition, the law clarifies that the exception applies “provided that you are able to use the vehicle in accordance with the duty of care, caution and no distraction.” Since the amount of THC in blood or saliva that impedes these faculties has not been established, it is likely that the fate of therapeutic cannabis users in Spain will be, without exception, to stop driving. And since authorized indications of cannabis derivatives will undoubtedly increase, so will the number of people affected by the driving ban. Otherwise, they will risk serious penalties, including committing a crime.

Although there are no clear data on CBD, which is not a psychoactive substance, some experts have warned that the great structural similarities between THC and CBD could lead to confusion. Therefore, if the test confuses the two substances, CBD users could also be persecuted even though their driving is not affected in any way. Undoubtedly, this is a question that requires further research.

Not Everything Is Lost – successful appeals against the new traffic law

Faced with this situation, people have begun reacting, especially in the legal arena. There are numerous appeals against resolutions based in the new Traffic Law, that use its various weak points against it. The first of these is the lack of regulation of active ingredients that must be present in blood or saliva to determine impaired driving. Unlike the breathalysers or radars used by the police, drug tests lack official metrological approval. Secondly, by punishing the presence of THC and not its dangerous effects on driving, they are exceeding their mission of protecting traffic safety by punishing people who do not pose a risk. And thirdly, by penalizing non-dangerous consumption, people’s privacy is invaded. The new law on cannabis and driving is  punishing them for an activity – private cannabis consumption – that is legal in Spain.

These issues have already reached the Constitutional Court on two occasions. On the one hand, a dispute tribunal in Vitoria presented an issue of unconstitutionality against regulation by drug tests, considering that it violates fundamental rights. On the other, the Brotsanbert law firm, with the collaboration of Rafael Agulló, has filed a writ of amparo against a sanction imposed on a driver in Cantabria. While I was finishing this article, this firm achieved an important victory, by getting the Dispute Court No.1 of Alicante to suspend a sanctioning procedure for testing positive in a drug test until the unconstitutionality issue presented in Vitoria is resolved. This event may serve to suspend proceedings in other courts, and could be an important obstacle to the application of the new law. We will see what happens, but the last word on this thorny issue has not yet been spoken. We will keep our fingers crossed.

Tips and warnings for drivers using cannabis in Spain

  1. The first piece of advice, without doubt, would be caution and moderation. Whether or not road checks are in place, the fact is that cannabis can impair driving, especially in people who are not used to it, and this poses a risk to ourselves and others.
  2. Never mix alcohol and cannabis if you are going to drive. Alcohol on its own is the most dangerous substance for driving, but when it is used along with other drugs it increases the risk of accident. In the case of cannabis, studies have shown that when it is mixed with alcohol the risk of accident is several times greater than when consumed alone.
  3. In Spain, alcohol and drug tests are compulsory. We should never refuse to take them, because that would be committing a crime.
  4. After smoking or consuming cannabis orally, it is recommended to rinse one’s mouth. Use water, juice, milk or any of the products sold to avoid testing positive (although generally these are not very effective). The main thing is to wash the mouth to remove the remains of the substance that the test is meant to detect, THC.
  5. There is no official drug test calibration certificate, so ask to see it. If they ask us to do the test, we should ask them to show us the official certification that the detection device used is properly calibrated. They will tell us that they do not have it, since it does not exist. We must try to get the agents to write down our request on the statement of offence so that in the case of a sanction we could file an appeal.
  6. If we test positive for saliva, we can ask that a doctor do a blood test in a medical centre. Usually the police refuse, since that would imply abandoning their checkpoint to take the alleged offender to a medical centre. However, there have been cases in which the police have desisted from giving a fine for this reason. If they insist on accusing us without taking us to a medical centre, we must try to get our request to be put on record before they ask us to sign the statement of offence, even though it is not mandatory to do so.

Thanks to Claudio Vidal, Héctor Brontons, Nuria Calzada and Rafael Agulló, for their help writing this article.

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