Cannabis and driving The law governing German driving licences punishes cannabis consumption is harsher than in many neighbouring countries. One thing stands out: on the one hand, the threshold value of 1ng THC/ml of blood serum for social users is very low, while on the other hand, there’s no THC threshold for medicinal use. But this does not mean patients are fully protected.
In Germany there are very strict rules about driving a vehicle under the influence of cannabis. The low value of 1ng THC/ml of blood serum, as well as the measurement of the non-psychoactive THC-COOH, means that even the most sober driver, cyclist or pedestrian can lose their driving licence due to minuscule traces of THC. While the threshold value is defined in most countries by the level of it present in the blood, in Germany it is measured in the blood serum, which approximately doubles the level. The legislator refuses, despite recommendations from the relevant expert committee, to increase the threshold to the recommended two or three nanograms. It appears that this actually has nothing to do with road safety, but instead is all about the ability to punish cannabis consumers, who cannot be touched directly by the criminal law for low quantities and just occasional consumption.
The limit does not apply to cannabis patients who have a valid prescription. Like other users of prescription medication (e.g. opioids, opiates or amphetamines) they have to take care not to drive under the direct influence of the substance. In addition, if they are given a new prescription, they need to allow a six week transitional phase during which time they may not drive. Basically, it is the prescribing doctor who is required to alert their patients to the risks, and to make any necessary precautionary recommendations.
What is meant by ‘under the direct influence’?
In Germany, unlike in the US or in Austria, as part of a traffic check following suspicion of cannabis, little notice is taken of determining the so-called failure symptoms. In a normal case, the officer will shine a torch into the eyes of the suspect and have initial suspicions – or not – from the way their pupils react. This is then followed by a request to voluntarily undergo a urine test, which then confirms or belies the initial suspicion. If the initial suspicion is confirmed by the urine test, or if the person refuses to provide a sample at all, then the car is left parked, and they have to go to the police station to provide the permitted blood sample as evidence.
In Austria or the US, the police have to confirm their initial suspicions on the basis of failure symptoms, based on a well-defined pattern. This is done through a variety of tests, such as standing on one leg, walking along a straight line, estimating how long 30 seconds are, or the famous ‘place your finger on your nose’ test.
In Germany, these failure symptoms are also included in the so called ‘stagger list’. In order to justify an initial suspicion, in Germany the subjective suspicion on the part of the police officer, is all that is needed, regardless of whether the steps set out in the ‘stagger list’ were actually checked to confirm the initial suspicion or whether these were only applied once the doctor was collecting a blood sample. This is of course also due to what the legislator and the police already know: At the currently applicable threshold of 1ng THC/ml of blood serum, the suspect would not display any failure symptoms, and they would easily pass the series of tests with more than 1ng THC/ml.
With cannabis patients, however, an initial suspicion on its own is not enough. Because in their case, due to the time required for decomposition, they will always be above the threshold value, whether or not, in the terminology used by the law, they are ‘under the direct influence’ while driving. In addition, there is also no threshold level for the other prescription medicines mentioned above. Solely for reasons of equal treatment of the many patients who are prescribed such drugs, the legislator cannot set any kind of limit on the medicinal use of cannabis, without also defining the same thing for Ritalin, Tilidin and other narcotic substances.
Therefore, the police have to demonstrate that the cannabis patient’s ability to drive has been directly impaired. This can only work if the person concerned is so stoned when they get behind the wheel that they cannot pass the above tests – in which case they really should not be on the road at all.
Anyone consuming cannabis on a daily basis for a chronic disease who has already got past the transitional phase referred to above, and who waits a little while after taking their medication so that the direct effects have worn off, has nothing to fear really in Germany.
But why do we say ‘really’? This is the bit where patients are not protected at all.
As cannabis is simultaneously an illegal drug and medicine, and as the legislator has not yet fully defined the term ‘medicinal’ in relation to traffic law, not all driving licence authorities in Germany differentiate between medicinal use and recreational consumption. There are also some individual cases where those affected have had their driving licences confiscated in contravention of the current law, because an individual administrator had doubts about the ability to dose the levels of buds correctly. Another patient did not get their driving licence back, after admitting in conversation that they could not always afford to get the expensive, medicinal cannabis. The authorities therefore concluded that he could not be taking the prescribed dose regularly, therefore could be taking less than required, making him a risk to road traffic safety. Equally, patients who are self-medicating illegally, and who only make the effort to get a prescription after their driving licence has been withdrawn have little chance of escaping the threatened sanctions.
From a purely legal point of view, cannabis patients who can produce a valid prescription have little to fear when driving in Germany – provided the authorities and the police are aware of the current legislation. That is sadly not always the case, and this very recently led to the loss of driving licenses in some cases, even after proof was provided of the medicinal use of hemp buds. The real problem with this is that an administrative ruling, such as withdrawal of a driving licence, cannot be challenged by an objection within a certain deadline, but only by going to court. This means that you can only challenge the legality of withdrawing your driving licence after it has already been withdrawn. The administrative law reverses the burden of proof here, because the actual sanction has already occurred, before a court has had any say in whether it is lawful. Sadly, this applies equally to patients and recreational users.