Since about 1994, when the German Federal Constitutional Court effectively decriminalized the possession of small amounts of cannabis, a functional equivalent to criminal law has evolved in the form of traffic laws providing for the revocation of driving licenses in cases of cannabis possession. The historical and legal interpretations of this regulation are described, and its consequences are analyzed. It is postulated that, under the veil of traffic safety, harsh and repressive drug policies are being utilized to counteract legalization tendencies.
Political discourse linking drug possession and street traffic law increased when the German Federal Constitutional Court reached its so-called "cannabis decision" in 1994. In this case, the court sought the reappraisal of so-called "soft" drugs under criminal law. Opposition politicians, mostly Social Democrats and Greens, and a number of experts held discussions on new directions in drug policy, and some federal states and municipalities put new drug policies into practice.
In the media, however, the subject of "illegal drug use and road traffic" went almost unnoticed. To the extent that this issue had any significance at all for the public at large, it related primarily to the so-called "blood alcohol limit." The subject of legal and illegal drug use by automobile drivers has thus been restricted to specialized circles of diverse professional groups. This topic has only been a part of the political discourse since about the middle of the 1990s. The amendments to the Road Traffic Act (Strassenverkehrsgesetz, StVG) were actually put into force in 1998. In 1999, the Driver's License Regulations (Fahrerlaubnisverordnung, FeY) were amended. During the mid-1990s, people stopped for traffic violations were increasingly being charged with illegal drug offenses. At the same time, the sophistication of expert testimony related to driving aptitude also increased.
As it does in the debate over drug policy in general, the topic of cannabis has come to play a significant role in discussions of drug use by drivers. This focus on cannabis impairment is primarily due to the increasing prevalence and proliferation of this drug in Germany. Marijuana sanctions were eased in the 1990s through 31 a of the Narcotics Act (Betaeubungsmittelgesetz, BtMG). At the time the government suggested that the relaxed laws had led to more cannabis use by drivers.
Due to its properties, the effective ingredient in cannabis, THC, and its catabolic products remain in the body much longer than alcohol does, although these residual chemicals have been proven to have no acute impact on driving ability (fe. Grotenhermen, F & Karus, M: Cannabis, Strassenverkehr and Arbeitswelt. Berlin Heidelberg New York: Springer Verlag, 2002). The Red/Green federal government is currently working on drafting legislation to allow for the promotion of cannabis products or THC for medicinal use. Under the proposed legislation, cannabis would be exempted, as other drugs used for medicinal purposes are, with respect to the Road Traffic Act. Given these considerations, the discussion about a driver's use of cannabis is of symbolic importance for the larger discussion about all illegal drug use by drivers.
In an article on the risks cannabis poses for drivers, Krueger and Loebmann (1998) observed "from the perspective of traffic safety," a drug is only problematic to the extent that "it is capable of introducing additional risks to driving. Whether or not drug policy should make use of traffic laws to prevent and suppress drug consumption - even independently of such an increase in risk - cannot be answered using the same scientific methods as in traffic research."
When the amendments were being made to the road traffic law and the corresponding administrative orders relating to drug policy were passed, many complementary concerns were joined. Thus, the subject of "cannabis in road traffic" cannot be considered without taking into account the more general subject of "drug policy. …