German president Frank-Walter Steinmeier signed off on legislation a fortnight ago to set a limit for driving under the influence of cannabis, with the new legal limit that's now taken effect being 3.5 nanograms of THC per millilitre of blood.
THC or tetrahydrocannabinol is the psychoactive ingredient of cannabis, which produces a high or euphoric feeling in the consumer of the plant. And as cannabis reacts differently to the body than alcohol does, the process of setting THC intoxication level limits is not as straightforward as booze.
Unlike drink driving measures in Australia, drug driving laws, which have only existed in terms of roadside testing since Victoria introduced its regime in 2004, with NSW following in 2007, these laws don't ascertain a level of an illegal substance in a driver's system, but instead merely show presence.
The German Society for Traffic Medicine explains that occasional cannabis users could meet the 3.5 nanogram threshold from 3 to 5 hours after consumption. But this is not an exact science because THC is lipid-soluble, meaning it's stored in fatty tissues of certain organs and is slowly released.
Indeed, Germany legalised medicinal cannabis nationally in 2017, and since April this year, recreational use has been legalised in a limited manner.
Yet, in NSW, where medicinal cannabis use has been legal since 2016, users continue to be barred from driving or else risk losing their licence.
Driving nonprofit German legalisation
The Bundestag, the German lower house, set the 3.5 nanogram per millilitre of blood limit in early June. This limit has been deemed comparable to 20 milligrams of alcohol per 100 millilitres of blood.
And Germany has also imposed a complete ban on driving under the influence of cannabis and alcohol at the same time.
Conservatives argued that a preexisting absolute ban on the presence of any THC in the blood of drivers should be kept in place, but since recreational use became partially legalised as of 1 April, the government considered new driving laws were needed, especially with further upcoming reforms.
From April it became legal for Germans to have up to 25 grams of cannabis in their possession for recreational use and up to 50 grams stored in their premises, along with the legal ability to grow up to three cannabis plants at home as well.
And as of 1 July, official growers' associations could commence growing the plant for legal distribution and purchase of up to 25 grams by its registered members that can account for up to 500 people.
This German model of legalisation priorities the nonprofit approach to the cannabis market and precludes commercial market mechanisms.
The Cannabis Act or CanG, which was passed in February, also removed medicinal cannabis from being classified as a narcotic substance, meaning it's more accessible to patients now than ever before.
The issue with THC is that for regular users its presence may still be determined by the salvia tests that German police and law enforcement in NSW use, as these procedures can result in traces of the drug showing up in a person's system literally weeks after they last consumed it.
Many of the 24 US states where recreational cannabis is legal, as well as in Canada, where nonmedical use of the plant is legal nationwide, limits have been set ranging from 2 to 5 nanograms of THC per millilitre of blood for those getting behind the wheel of a car.
And this would indicate that there is a process of ascertaining the limit of THC in a driver's system following a positive salvia test, as the swap tests used by NSW police do not have the ability to ascertain levels of THC in the system but only the mere presence of the drug.
The German government is also being clear in suggesting that as THC presence in peoples' systems does not act in a uniform way, those smoking cannabis should wait at least 12 hours prior to driving, whereas those who have consumed edibles should wait at least up to 24 hours.
Although if a person consumed cannabis 12 hours prior to driving a car and then has an accident, it's highly unlikely the plant had anything to do with it.
It's high time for reform
Germany became the third European nation to legalise recreational cannabis on the continent after Malta and Luxembourg.
The announcement that Germany has set a permittable legal limit for the amount of THC in drivers' systems is significant for the Australian scene as precise roadside drug testing is usually dismissed as an impossible task by an establishment that has invested heavily in currently operating swaps tests.
The legal limit for driving with the presence of THC in the state of NSW is zero. And this zero-tolerance approach is taken to all illicit substances that are captured under the drug driving regime.
But since cannabis medicine became legal in October 2016, these laws have been extra unjust, as no exception has been made for people using doctor prescribed cannabis medicine for ailments being able to drive without risk of losing their licence for the presence of THC even when not affected.
Tasmania is the only state that permits those with a cannabis medicine script to have a defence to a cannabis driving charge on proving that they're using the drug in a legally prescribed manner. However, South Australia and NSW have both voted down establishing such a defence in the past.
The unspoken excuse for not dealing cannabis driving laws in Australia tends to be the ambiguities surrounding attempts to set limits for permissible levels of THC in a driver's system, even though nations like Germany, Norway and the Netherlands have already done so.
The Norwegian drug driving model was rolled out in 2012. Since February that year, police in Norway have tested for levels of 20 illegal and prescription drugs in drivers systems, while the Netherlands followed suit with its own drug driving laws in 2017.
Former NSW Magistrate David Heilpern told the NSW inquiry into cannabis laws last month that instead of attempting to catch drivers out with zero-tolerance tests, the state has driving under the influence of drug laws that can be applied by police officers to assess a driver's state on-the-spot.
But the NSW District Court last year found that drug driving is an absolute liability offence, meaning there is no defence of an honest or reasonable mistake if a person is caught driving with certain drugs present in their system, which does not bode well for cannabis medicine users.
During an estimates hearing last week, premier Chris Minns told Legalise Cannabis NSW MLC Jeremey Buckingham that the law was clear that those people using cannabis medicine can't drive, despite that not being the case for any other type of prescribed medicine.
And as for whether this law is unjust, well, the NSW premier has no opinion on anything to do with drug law reform as he's going to leave that up to the NSW Drug Summit, which is scheduled to begin next month.
Indeed, it increasingly appears that Minns wishes the issue of illicit substances would just disappear.
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