by Micha on 10/10/2018 | Medicinal

Why cannabis patients in Germany are allowed to drive, and what they need to know

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’?

Why cannabis patients in Germany are allowed to drive and what they need to know.

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.

A close-up of two German driving licences placed between two tachographs.

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.

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Winston Matthews

In the UK we use cannabis based drugs and this is how we deal with this .

Advice for those prescribed Sativex

From 2 March 2015 there will be a new law on driving after taking certain drugs (including some medicines) in England and Wales. This law states that it is an offence to drive with certain drugs above specified blood levels in the body, whether your driving is impaired or not. This will make it easier for the police to tackle drug drivers.The new law sets limits at very low levels for eight drugs commonly associated with illegal drug use, such as cannabis and cocaine, to tackle illegal drug use and driving. The law also includes eight drugs commonly associated with medicinal use,that are sometimes abused, that have been set at higher limits based on the available evidence of the road safety risk and to reflect their use as medicines.The majority of patients that are fit to drive and are taking medicines as
directed are unlikely to be above the specified limit and therefore would not be committing the new offence. Even if you are above the specified limit but your driving is not impaired and you are taking your medicine in accordance with the advice of a healthcare professional and/or as printed in the accompanying leaflet you will also be within the law.Prescribed Sativex: The Government has carefully considered Sativex, as it is a cannabis plant based drug that has a licence for medical use in the UK where it is prescribed for the treatment of spasticity in multiple sclerosis (MS).
For the purposes of roadside screening tests, the police would not be able to distinguish using a preliminary saliva test between a driver taking cannabis and a driver taking Sativex. Therefore patients treated with Sativex are likely to give a positive preliminary saliva result and might subsequently be over the specified blood limit. However, if you are an MS sufferer who in the opinion of a doctor is able to drive safely you should not be deterred from either taking your medicine or from driving. In these circumstances there is a statutory medical defence that can be raised for the new drug driving offence.Certain medicines may affect your ability to drive and it will remain an offence to drive while your ability is impaired by drugs as there is no defence of being impaired to drive. You should also always continue to take your medicine in accordance with the advice of a healthcare professional and/or as printed in the accompanying leaflet but if in doubt about whether you are impaired you should not drive.
What will happen if I’m stopped by the police?
The ‘medical defence’ can be raised for the new offence if drivers are taking medication as directed and found to be over the limit and not impaired. Drivers taking relevant medicines may choose to have evidence with them when driving to indicate that they have been legitimately supplied and minimise inconvenience. The medical defence states that you are not guilty if:
the medicine was prescribed, supplied, or sold to you to treat a medical or dental problem, andyou took the medicine according to the instructions given by the prescriber, a pharmacist or a member of the pharmacy team or the information provided with the medicine.MS is a medical condition that must be notified to the DVLA. If your doctor provides an opinion to the DVLA that you are safe to drive then the DVLA would notify you that a short-term driving licence will be issued for up to three years. The notification letter sent by the DVLA will also provide advice on the new drug driving offence and the medical defence.

This letter could be kept with you as evidence, along with your prescription, counterfoil or any letter, report or advice from a healthcare professional so that you can raise the medical defence at the earliest opportunity and reduce any inconvenience. If the police are satisfied that you are taking your medication under the supervision and/or advice of a healthcare professional (such as the prescriber, your doctor or pharmacist) and your driving is not impaired, they can allow you to proceed.
What should I do if I need to take any of the specified medicines?
Keep taking your medicines as prescribed.Check the leaflet that comes with your medicines for information on how your medicines may affect your driving ability.Do not drive after taking your medicines until you know how they affect you. Do not drive if you feel drowsy, dizzy, unable to concentrate or make decisions, or if you have blurred or double vision.If you are taking your medicine in accordance with the advice of a healthcare professional and/or as printed in the accompanying leaflet and your driving is not impaired, then you are not breaking the law. If you are unsure how the change will affect you, talk to your doctor or a member of the pharmacy team.
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Håkan Anderberg

Soon most cars will be driven by robotics so ... it's not any big issue really. I drove 40.000 km a year mainly in the city, for years - never had an accident, smoked 4-5 a day. You are a bit more careful is my experience.


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