traffic check In Germany, many people lose their driving licence without ever driving while high. Read here how you can avoid that.
Germany is by no means the strictest country when it comes to punishing the possession of cannabis or dealing in it, and nowadays it has one of the most progressive laws on the use of medicinal cannabis. But when it comes to driving licences, Germany is more repressive than almost any other country in the world.
This was not always the case, but since the decriminalisation of small quantities of cannabis in the mid-1990s, driving-licence offences appear to act as a kind of surrogate for minor cannabis offences. Because Germany punishes not just anyone who drives under the influence of cannabis, but also sober drivers who consumed cannabis days or even weeks previously. It does so by applying the uniquely low threshold value of 1 ng of THC/ml. This is in fact so low that there is no intoxication. As a comparison: intoxication occurs at approx. 20 ng, and after an average joint, you would have about 50-70 ng of THC in your blood. In Germany, unlike in other countries, the value is calculated based on the blood serum, which therefore leads to a reading that is more than twice as high as when measured in the total blood, which is normal in most places. An example: Switzerland, which defines driving under the influence of drugs very precisely and punishes it just as harshly as Germany, has set a threshold of 1.5 ng in total blood for drivers of public transport vehicles and taxis, which is comparable to the 0.0 alcohol level for taxi drivers. At first sight, the German threshold of 1 ng/ml does not appear to be much lower. But if you take into account that the Swiss threshold is measured in the total blood and not, as in Germany, in the blood serum, then this equates to threshold of 3 ng/ml of serum. So the threshold for professional drivers in Switzerland is actually three time higher than for all drivers in Germany.
Furthermore, Germany’s method of determining the THC-COOH value, from which it is claimed that the level of consumption and therefore the frequency of consumption can be calculated, is not the norm internationally and is the subject of much scientific debate. “So far it has been assumed that demonstrating the presence of specific decomposition products from the active cannabis ingredient THC in the hair was certain proof of consumption. Researchers at the Institute of Legal Medicine at Freiburg University Hospital, led by the toxicologist Prof. Volker Auwärter, have shown in experimental studies that this conclusion can lead to false conclusions,” says the journal Nature in its “Scientific Reports” in October 2015. Most countries or states where cannabis has been regulated or decriminalised, such as Colorado, the Netherlands or the Czech Republic, do not rely on measurements of these disputed THC decomposition products. They look only at the active THC value, which is relevant to whether someone was driving under the influence.
Even if it was simply a matter of possession, with no driving, you basically can expect to receive a notice from the driving licence authority. It is irrelevant whether the criminal proceedings concerned a small quantity of cannabis for personal use or not. The most junior level of official at the driving licence office now decides at an initial meeting whether you have a problem with marijuana. Problematic consumption starts officially in Germany at the level of “12 instances of consumption per year.” Depending on the decision of the administrative assistant, the next step could be an indefinite driving ban. This can only be lifted after providing proof of six months of abstinence and a medical certificate. Plus, a Medical Psychological Evaluation (MPE) will generally also be required, which in Germany is colloquially known as the “Idiot Test.” On average, this process costs a four-figure sum and a 12-month driving ban, as well as total abstinence, without there ever having been a case of driving under the influence, or any pattern of problematic consumption.
Citizens of other EU countries are often not even aware of this strict approach until the day that some residual THC in their blood, which in their home country would be of zero interest, is their downfall during a visit to Germany, or even just while driving through. Although the German authorities cannot revoke a licence from citizens of other countries, a ban on driving on German roads, a 24-hour enforced break and a penalty for driving under the influence of drugs are a certainty if the threshold is exceeded. The penalty for driving under the influence of drugs can amount to €500, plus a four-week ban on driving.
To lift this ban on driving on German roads, for which the authorities can demand proof of abstinence and medical reports, citizens of other EU countries are subject to the same rules as Germans. This was confirmed by the European Court in 2015, when it rejected a complaint from an Austrian woman because her THC-COOH value was too high. She was given an unlimited ban on driving in Germany due to the presence of THC decomposition products in her body, which in her home country is not even relevant to holding a driving licence.
What should I do if checked?
But if you are sober when driving and if you adhere to a few unwritten rules during a traffic check, you can avoid a lot of trouble from the outset.
– Drive only when sober.
– Keep calm.
– Remain polite.
– Do not sign anything. There is no police document that will help you if you sign it. This applies especially to a record of seizure and removal.
– Avoid any cannabis waste (remains of joints, empty Ziploc bags etc.).
– Do not provoke a check (seatbelts, lights, stickers etc.).
Always have your car documents handy.
– Any statements about present or past consumption will only help the police. Even saying “The last time I smoked was three days ago, and I only smoke every second weekend” means under German law that you are a regular consumer of cannabis and this can have consequences.
– Reply to all questions that go beyond your personal details with: “No comment.” Do not be tempted to join in with supposedly unofficial conversations, small talk or similar.
– Providing a urine, wipe or saliva sample are all voluntary in Germany and cannot be used as evidence in court, as they are not precise. Usually, it is better to refuse these tests, in a friendly manner. Many urine, saliva or wipe tests only react at values of 5-30 ng. That is illogical according to the law, but was confirmed in studies performed by the University of Bonn. So anyone who has between 1 and 5 ng in their blood could pass an instant test and therefore avoid giving a blood sample, even though they had more than the threshold value of 1 ng in their blood. How exactly a preliminary test is handled is down to the police. They define the desired cut-off value when ordering the test strips, and this is not made public. Why this is not set at the same level as the threshold level in blood remains one of the many unresolved issues in the way cannabis is handled under the law relating to driving licences.
– A positive urine sample will mean a blood sample will be taken. The blood sample may only be taken under an order from a judge. This must always be obtained by the police.
– Anyone who refuses a urine sample will almost always be taken along for a blood sample, after a ruling from a judge is obtained by phone.
– If an instant test is positive (urine, blood, saliva) then the vehicle may not be driven for 24 hours. The result of a blood test, on the other hand, is usually only available several weeks later. If the instant test is refused, and there is no physical or mental impairment present, the police have no cause for preventing you from continuing to drive on after the check.
– Any symptoms of impairment must be recorded on a special form. Anyone who is sober should insist on running through the normal checks (placing your finger on your nose, standing on one leg etc.), and having it recorded that there were no symptoms of impairment. The so-called pupil test, performed using a torch, is often used as the excuse for further measures. Anyone who is told that their pupils indicate drug use, should point out calmly to the officials that this is not the case and that they would like to be tested on the many other indications of impairment listed on the form, such as sense of balance, speech, hand-eye coordination, reaction time. In addition, if you are required to provide a blood sample later, you should ask the doctor who does this to repeat the pupil test that the police used to justify their actions.
– If a passenger is found to have cannabis, it is not relevant to the state of the driver, and unless there are other indications (see above), it does not justify measures being taken against the driver.
– I myself, during a traffic check in 2015, ate my cannabis while the police watched. Of course I was over the limit, but there was no question of driving under the influence, or possession of cannabis. The buds were gone, and the high THC value was a result of consumption after having been stopped. This tactic is only suitable for people with strong nerves and a high THC tolerance.
Citizens of other EU states are also affected
If it is established using a blood sample that the threshold of 1 ng has been exceeded, both Germans and other EU citizens are fined and given a temporary driving ban. Once they have been informed by the police of the blood level, the driving licence authorities decide, weeks or months later, whether there will also be further consequences to the detected consumption of cannabis. Many people who are accused of impaired judgement, but who have never driven under the influence, are punished twice over, often for years.
Many experts are now calling for an alignment of practices to international usages, i.e. increasing the threshold to 3 ng. Not only the toxicologist from Freiburg, Prof. Auwärter, but also the Threshold Committee, a joint working party of the Society for Toxicological and Forensic Chemistry (GTFCh), the German Society for Legal Medicine and the German Society for Traffic Medicine, argued in an article in the Blood Alcohol Journal last autumn in favour of raising the current THC value from 1 to 3 ng. The Threshold Committee has been advising the German Federal Government for years on questions of traffic safety where both legal and banned psychoactive substances are concerned, but on the subject of cannabis, the advice from this otherwise respected expert group still goes unheard. To change this disparity in treatment and create more certainty, the German Hemp Association (Deutsche Hanfverband) recently initiated a campaign under the motto “Clear head – Clear rules”.