Cannabis legalisation – smoking weed without consequences?

Now the time has come: after a long struggle and uncertainties that persisted until the end, the parties involved were finally able to agree on the final version of the new Consumer Cannabis Act (KCanG) and the existing amendments to other legal texts – we have already reported on this lengthy process and the planned and now implemented regulations several times on this blog (The decriminalisation of cannabis – “Legal, but…”, Update: Cannabis decriminalisation will come on 01.04.2024 and Update: Cannabis decriminalisation decided).

As happy as some people may be about the new freedoms, the legal matter is (as is so often the case) complicated.

Below we provide you with an overview of the most important key points and new legal options in relation to cannabis legalisation.

Consequences of cannabis legalisation for criminal law

New law – Is “everything” now permitted?

This question has already been discussed in our previous articles and the answer is probably obvious: No, of course not everything to do with cannabis is now permitted.

When developing the KCanG, the legislator’s express aim was to facilitate responsible use of cannabis in view of the rising consumption figures and to enable controlled release on the one hand and to strengthen information, counselling and prevention services on the other.

Section 3 para. 1 KCanG, for example, stipulates that possession of up to 25 grams of cannabis for personal use is permitted. According to Section 3 para. 2 KCanG, up to 50 grams of cannabis and up to three live cannabis plants may be kept at one’s own residence. Further regulations concern the possession of cannabis in the newly established cultivation associations and the handling of cannabis seeds, which is also only permitted within certain limits (Section 4 KCanG). The law also regulates in detail the requirements for private cultivation, cultivation and distribution in corresponding associations as well as measures for the protection of children and young people and for the prevention of addiction.

In this respect, although criminal offences in connection with cannabis have been removed from the Narcotics Act (BtMG), the KCanG provides for corresponding new offences in Sections 34 et seq.

For example, anyone who violates the legally prescribed limits and possesses more cannabis than permitted or cultivates or distributes the substance without authorisation is punished with a prison sentence of up to three years or a fine in accordance with Section 34 (1) No. 1 or No. 15 KCanG. In certain cases, Section 34 (2) KCanG provides for the possibility of an offence of negligence, which carries a custodial sentence of up to one year or a fine. Conversely, however, there may also be an aggravated penalty under Section 34 para. 3 if the case is particularly serious, for example if cannabis is cultivated or distributed without official authorisation and is traded commercially. The typical “dealer activity” is therefore still prohibited! Only the penalty has become more lenient compared to the previously applicable BtMG.

Caution is therefore still required when dealing with cannabis – it can only be advised to comply with the statutory limits and to pay attention to them, and (in cases where this is provided for) to obtain an official licence and to take and comply with the prescribed protective measures.

If preliminary proceedings have been initiated against you for the unauthorised handling of cannabis in accordance with Section 34 KCanG, if you have received a penalty order or even if charges have already been brought, we strongly recommend that you seek legal advice in order to avoid criminal consequences as far as possible.

We keep up to date with the latest developments in the law and case law and are happy to assist you with our expertise at any stage of the proceedings.

Are minors allowed to smoke weed?

As the legislative initiative aims to counteract the development of addictions and developmental disorders, the legislator has understandably also considered measures and regulations for the protection of children and young people.

For this reason, the regulations on the authorised use of cannabis only apply to persons who have reached the age of 18; for minors, the consumption, possession and distribution – in other words, everything to do with the substance cannabis – remains prohibited.

How will the new regulations affect ongoing investigations?

There is good news for all those who are under investigation for an offence against the BtMG that has not yet been concluded.

In this case, the so-called most-favoured-nation principle applies. This means that criminal liability is no longer based on the BtMG, but on the current legal situation. Those affected can therefore expect a significantly lower sentence or even a dismissal of the preliminary proceedings.

If you are still subject to cannabis-related preliminary proceedings, we will be happy to advise you on your options and take appropriate action.

Getting out of prison through cannabis legalisation?

Does the change in the legal situation also have an impact on people who are currently serving a prison sentence for a cannabis offence or have been fined?

That depends very much on the individual case. In principle, judgements can only be changed if the sentence has at least not yet been fully enforced. For example, if a fine has already been paid, it cannot simply be demanded back.

However, anyone who is currently still serving a prison sentence or has not yet paid their fine has a good chance of obtaining a favourable change to their sentence if the offences committed would no longer be punishable as things stand today or would be punished less severely. In these cases, there is a good chance that prisoners will be released from prison earlier or can avoid paying their fine. If several offences have been committed, i.e. an overall sentence has been imposed, the competent court must also reassess the new legal situation on application and form a new overall sentence. This can also have a positive effect for the convicted person.

It goes without saying that the chances in this regard should be thoroughly examined from a legal perspective and the options for action should be discussed with a lawyer.

It is particularly advisable to take action in this regard at an early stage. The judiciary is already expecting a veritable wave of applications and will probably be heavily overloaded in the near future; the applications will be processed correspondingly slowly.

How will the change in the law affect entries in the Federal Central Criminal Register?

In principle, convictions are recorded in the Federal Central Criminal Register for a period of between five and twenty years, unlike in the certificate of good conduct. This long period is often a major problem, especially for people who want to work in the public sector.

However, the new KCanG now offers new opportunities to have entries erased, at least in the case of cannabis-related convictions. §§ 40 ff. KCanG, which are due to come into force on 01.01.2025, regulate the eligibility for expungement via a conviction under Section 29 BtMG in connection with cannabis if certain conditions are met.

In order to establish eligibility for expungement, the person concerned must submit an application to the competent public prosecutor’s office in accordance with Section 41 (1) KCanG and credibly demonstrate that the requirements for expungement are met. An affidavit may be authorised for this purpose in accordance with Section 41 (2) sentence 2 KCanG. If it has been established that the person is eligible for redemption, the register authority and the convicted person must be informed of this in accordance with Section 42 KCanG and the register authority must subsequently redeem the conviction.

If you are planning to submit such an application for your conviction to be eligible for expungement, you are welcome to have us check whether the requirements for this have been met. We will be happy to assist you with the application and the further procedure for expungement.

Consequences of cannabis legalisation for criminal traffic law

What will change in criminal and fine law?

Basically, the same regulations apply in criminal and fine law as before. Pursuant to Section 24a (2) StVG in conjunction with the annex to Section 24a (2) sentence 1 StVG, anyone who drives a motor vehicle while under the influence of cannabis is committing an administrative offence. According to Section 24a para. 2 sentence 2 StVG, such an effect is present if THC is detected in the blood. This provision was not changed by the legalisation of cannabis. Only the previously applicable THC threshold value could shift in the future.

Traffic criminal law has also not changed with regard to driving under the influence of THC. The provisions of Sections 315 et seq. of the German Criminal Code (StGB) still apply – so if you get behind the wheel while intoxicated with cannabis, you run the risk of being prosecuted in particular for endangering road traffic in accordance with Section 315c (1) StGB.

What consequences does cannabis consumption have for the driving licence?

In principle, driving licences for narcotics are governed by Section 14 of the German Driving Licence Ordinance (FeV).

In the past, cannabis use was regularly tested for fitness to drive. For this purpose, the competent driving licence authorities used the option provided for in Section 14 FeV to obtain a medical or medical-psychological report under certain conditions. However, it was also possible to withdraw the driving licence directly – the frequency of consumption was decisive for the assessment of fitness to drive. Sooner or later, a so-called medical-psychological examination often led to the withdrawal of the driving licence, which was followed by a lengthy process of re-examination of driving fitness through further examinations when applying for a new licence.

The newly introduced Section 13a FeV provides relief in this context. The requirements of this standard are much more narrowly defined than those in the former Section 14 FeV – in particular, “occasional” or even “regular” use is no longer sufficient for a fitness test; instead, there must be evidence of cannabis abuse, addiction or repeated offences in road traffic, for example. Measures to check fitness to drive will therefore presumably be taken less frequently in future than before cannabis was legalised.

If you are currently affected by a withdrawal of your driving licence or an order for a medical examination, it may well be worth having it checked whether the order or withdrawal violates applicable law and, if so, to file an application for suspension of the driving licence proceedings or to lodge an appeal against the withdrawal of your driving licence.

What THC levels currently apply?

Accompanying the legalisation of cannabis, a commission of experts has presented a recommendation for a limit value in road traffic. It proposes a concentration of 3.5 nanograms of THC per millilitre of blood serum. According to the Federal Ministry of Transport, according to the current state of scientific knowledge, a “road safety-relevant effect when driving a motor vehicle is not far-fetched” above this value. In addition, the commission suggested establishing an absolute ban on alcohol for cannabis users in order to counteract the significantly higher risk to road traffic associated with mixed consumption.

However, these recommendations have not yet been formalised in law. So far, a value of 1.0 nanogram has been established in case law, which will continue to apply for the time being. In this respect, exceeding this limit may result in a fine of up to €3,000 in accordance with Section 24a (2) and (3) of the German Road Traffic Act (StVG) for committing an administrative offence. Under certain circumstances, you may even be liable to prosecution under Section 315c I No. 1 StGB.

However, it may well be worth applying for a suspension of the proceedings if you are currently subject to fine proceedings and had a blood concentration of less than 3.5 nanograms. Please do not hesitate to contact us!