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Cannabis and fitness to drive

Are you ready for a tour de force of a very special kind? Then treat yourself to reading this website. You will learn everything you need to know about the current assessment of fitness to drive with cannabis. Don't be put off by the size of the page and the sometimes technical arguments. You will be rewarded with a deeper understanding of the matter and you will see ways and possibilities that are not easily brought to your attention elsewhere. You will learn how best to behave in the event of an impending driver's license revocation and how to optimize your chance of passing an MPU.

Since the legal and official assessment of cannabis can change constantly and the institutes of fitness to drive also have their own ideas, which may well differ from these, it is advisable to contact a competent traffic psychologist or, in individual cases, a specialist lawyer, while reading this material. This is the only way to ensure that you do not miss out on the most up-to-date path tailored to your individual case.

So let's dive into the very special world of fitness to drive under the influence of cannabis and let's start with the question of what role the frequency of use of this drug plays in the legal and regulatory assessment.

1. Regular cannabis consumption

For the lawyer, the decisive question is whether you have consumed cannabis regularly or only occasionally. In Bavaria, regularity is now understood to mean "daily or almost daily" intake of this substance. The consumption of four times, even five times a week does not constitute regularity. In contrast, the period of consumption is comparatively irrelevant, i.e. four to five months of proven, practically daily consumption are enough to end up in the conceptual drawer of regularity or to give you the decisive label of regularity.

Of course, a clerk cannot act arbitrarily in his decision, so he will have to justify it, for which a specialist medical expertise, the person's own statements or toxicological findings are sufficient. On the web page on medical proof of abstinence you will find important detailed information on this, whereby we are particularly interested here in the THC-carboxylic acid value. For while the pure THC value looks at how intoxicated you were at the time of driving, the THC-carboxylic acid value gives us an indication of how often you have used cannabis in the past, whereby this value depends on how much time has passed between the consumption of the last joint and the blood sample. Not only the pure THC, but also the THC-carboxylic acid is continuously excreted by the body, which must be taken into account in the assessment.

After experts disagreed until the very end on how exactly to interpret the THC-carboxylic acid, official practice finally found a fairly generous solution. Regular consumption of cannabis is considered to be proven if 150ng/ml is reached in the timely blood draw common in Bavaria, whereas 75 ng/ml has to be reached in the case of time-delayed determination, which characterizes other federal states.

If the regularity is proven, then the further steps of the authority are given. Your clerk will revoke your driver's license immediately, even if evidence of abstinence is claimed in the meantime. He will require that you prove one year of drug abstinence, for which you need six random screenings (urine tests) or two hair analyses (of 6cm each) (see the web page on medical evidence in drug cases). And he will order an MPU after you have provided this evidence.

2. Occasional cannabis consumption

In order not to make the situation too simple, the legislator has come up with a regulation for non-regular consumption that puts worry lines on the foreheads of all involved, but let me share the current state of knowledge.

Occasional cannabis use, in the eyes of the legal profession, is when you have consumed hashish or marijuana "in temporal proximity" at least twice in your life. In other words, the two acts of consumption must have some temporal connection. You will not be surprised to learn that this definition has remained fuzzy, i.e., no uniform judicial assessment has emerged.

An earlier opinion that the two times of consumption must be within one year is now outdated. A later judgment has confirmed the "occasionality" even with a time interval of five years. This definition had become necessary, since one wanted to remove the one-time, experimental attempt from the assessment of aptitude, i.e. to reward those persons, who immediately followed the path of virtue after the experiment in question.

My impression is that up to a redemption period of 5 years, which applies to the administrative offense of driving with drugs (StVG §24a), if the driver's license has not been revoked, which is the normal case, a timely consumption is assumed, but it would also be absolutely advisable to make inquiries here about how the authority decides in each case.

Even the more current supreme court jurisprudence essentially leaves you in the lurch in this matter or skilfully pulls out of the affair. Thus one speaks once of the fact that "a lapse of time of several years between two drug intakes can form a caesura, which forbids a recourse to the earlier process when classifying the consumption under driving license law", but already relativizes this estimate in the postscript: "Whether such a relevant caesura is to be assumed between the individual consumption acts, must be judged according to the concrete circumstances of the respective individual case. The schematic determination of time periods is prohibited ..." (Federal Administrative Court 2014 - 3 C 3.13).

a) Additional facts and "inability to separate consumption and driving"

Now, however, occasional cannabis use, even if it is proven, cannot in itself raise doubts about fitness to drive, i.e. the hands of the driver's license office are still tied. Only when further incriminating moments, the so-called "additional facts", are added, is the ordering of an MPU iup for discussion. Additional facts are, on the one hand, the simultaneous consumption of alcohol and, of course, other drugs, the presence of a personality disorder, the occurrence of loss of control, and "driving under the acute influence of cannabis that is relevant to driving fitness". It is claimed in this latter case that you are unable to separate consumption and driving and therefore your fitness to drive is questioned. In short, if you have occasionally ingested cannabis and a blood test also shows that you had active THC at the time of driving, things will get tight. Everything now depends on a number of circumstances which I would like to present to you below.

b) The level of the measured THC value

First, we want to look at the threshold from which an illegal driving under cannabis or a lack of separation of smoking weed and driving are given and how the authority had to react depending on the level of the measured value. While an active THC value of less than 1ng/ml does not constitute driving under the influence of drugs according to settled case law, there were separate regulations in the past for each federal state beyond this mark.

So the vast majority of higher administrative courts were of the opinion that a THC value found in the blood serum of 1ng/ml was already a risk to road safety: one was allowed to assume that the person concerned lacked the ability to separate and was unfit to drive. If a corresponding value resulted from your blood sample as a driver and if you could be proven to have consumed cannabis at least twice, either by your own statements, by a specialist medical expertise or by a markedly increased THC-carboxylic acid value (see above and below), then you were considered unfit for driving motor vehicles. The driver's license office revoked the driving license and subsequently ordered an MPU.

Bavaria allowed itself a special path. With an active THC value between 1ng/ml and 2ng/ml the immediate withdrawal of the driver's license was waived and an MPU was first ordered. Only from 2ng/ml did the driver's license authority assume that the person concerned did not have the ability to separate without first obtaining a driving aptitude expertise and adopted the approach of the other federal states, i.e. immediately revoked the driver's license, which was followed by the MPU.

However, this special path seemed to give way to a uniform legal interpretation. A landmark decision of the Federal Administrative Court in 2014 (3 C 3.13) established that from 1ng/ml there was a potential risk, i.e. it was considered possible that a cannabis-related impairment of fitness to drive could not be ruled out. This meant that from this limit onwards, the offence of failure to separate smoking and driving or drug driving was fulfilled. The Federal Administrative Court rejected a safety margin. Also the later recommendation of the limit value commission to raise the critical THC value to 3ng/ml, the Bavarian Administrative Court repeatedly did not take up, since also below this value the possibility of a hazard could potentially not be ruled out.

Thus the legal situation seemed clear. From a THC value of 1ng/ml measured in the blood serum, drug driving was present in all cases. The authority was allowed to infer doubts about the fitness to drive and, based on the proven lack of separation as well as at least two times of consumption, to assume a lack of suitability, i.e. to revoke the driver's license. An MPU was ordered. Only after a positive expert opinion, the fitness to drive was restored.

c) Official doubts and the question of fitness to drive from 2017

a. The legal perspective

Dear Reader,

there will soon be more information also on the English page!

Dr. M. Junker