After a long political discussion, the possession of cannabis has been decriminalized in Germany for adults under certain conditions since April 1, 2024. This completely new drug policy for cannabis users is also accompanied by numerous changes in the fine procedure and driving license law.
1. Administrative offense
Despite the partial legalization, driving under the influence of cannabis in road traffic is to remain an administrative offence. According to § 24a II StVG, anyone who drives a motor vehicle under the influence of an intoxicating agent in road traffic is acting unlawfully. The previous limit of 1.0 nanogram of tetrahydrocannabinol (THC) per milliliter of blood serum, which had been established in case law, appeared to be too low because there was no conclusive evidence that driving under the influence of this amount would endanger road safety. At this limit, even drivers who had not used cannabis for some time and did not get behind the wheel while high faced severe penalties. The safe driving of a motor vehicle in traffic is only guaranteed when the concentration is below 3.5 nanograms. This has been proposed by a commission of experts. This recommended limit has since been adopted. The new Section 24a, paragraph 1a of the StVG, which was added by the "Sixth Act Amending the Road Traffic Act and Further Road Traffic Regulations," is expected to read as follows from July: "It is an offense to drive a motor vehicle on a public road if one has 3.5 ng/ml or more of tetrahydrocannabinol in one's blood serum. Sentence 1 shall not apply if the presence of the substance tetrahydrocannabinol in the blood serum results from the intended ingestion of a drug prescribed for a specific medical condition."
2. Überprüfung der Fahrtauglichkeit im Verkehrsverwaltungsrecht
For those affected, however, the relevance under administrative law regarding fines according to § 24a II StVG is often only the lesser of two evils, but as a rule there have been administrative consequences as well. In this case, there is a risk of more serious consequences. The driving license authority withdraws the driving license if the holder of a driving license proves unsuitable for driving motor vehicles. As far as cannabis use is concerned, the holder of a driving license for driving motor vehicles of all classes was considered unsuitable if he used cannabis regularly. The more liberal new drug policy does not fit with the previous understanding that drug users regularly show a lack of character. As is well known, even without a specific connection to road traffic, cannabis use automatically called into question fitness to drive.
The previous distinction between occasional and regular cannabis use is now countered by the fact that cannabis use has been legalized, so it can no longer be used to revoke a driver's license.
The new section 9.2.1 of Appendix 4 FeV now defines the concept of abuse. In this case, fitness is no longer given. Fitness can only be restored after the abuse has ended, when the change in cannabis use behavior has been consolidated, cf. point 9.2.2. Even in the case of dependence, fitness is to be denied, point 9.2.3.
The question of how the new legal situation will affect ongoing or already completed aptitude assessment procedures is currently of particular practical relevance, i.e. if the driving licence authority has ordered a medical-psychological assessment because the person concerned has previously been caught by the police driving under the influence of cannabis with, for example, 3 ng/ml in the blood. According to the standards at the time, he was at least an occasional cannabis user. Presumably, under current law, the driving license office will no longer insist on the provision of a medical-psychological report in this case, since this value is below the new limit of 3.5 ng/ml. In light of this, ongoing administrative proceedings to review fitness to drive due to previous cannabis use are likely to be closed in many cases, with the result that the person concerned will retain their driver's license.
The question will also arise more often as to whether a new application for a driver's license can be made without the requirement of a medical-psychological report. Often, the driver's license can be reissued without major complications and without the requirement of a report. This applies at least to cases in which the person concerned has not repeatedly violated traffic laws under the influence of cannabis.
Much remains unclear in this regard, and court decisions on the new legal situation and on the interpretation of the new regulations in the driving aptitude regulation are not yet available. Therefore, if you have any problems in this regard, you should definitely seek the help of a lawyer specializing in traffic law.
[1] Federal Drug Commissioner on cannabis legalization "Recreational and intoxicating drugs are part of society" v. 19.03.2022, https://www.spiegel.de/wissenschaft/mensch/cannabis-legalisierung-genuss-und-rauschmittel-gehoeren-zur-gesellschaft-dazu-a-b27d12d7-5fd4-4ab3-bbc1-084be900c42a
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.