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!