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Is CBD banned whilst driving? We take a look at the legislation
The Court of Cassation has just ruled: zero tolerance for residual traces of tetrahydrocannabinol (THC) following the consumption of cannabidiol (CBD). This surprising decision comes after a driver, who tested positive for THC, was acquitted by the Rouen Court of Appeal, which ruled that it was impossible to determine whether the driver had consumed cannabidiol (legal) or cannabis (a narcotic). The judgment was appealed to the Court of Cassation by the Public Prosecutor, resulting in a final ruling of zero tolerance regarding the use of cannabidiol whilst driving, where it contains residual traces of THC. The original judgment was overturned.
Until now, the courts had dealt with individuals under the influence of narcotics on a case-by-case basis. Residual traces of THC, permitted when they do not exceed 0.3% of the final product, often led to an acquittal. The decision of 21 June 2023 by the Court of Cassation radically changes the situation: could cannabidiol whilst driving cause you to lose your licence? Can you consume CBD and then drive?
Key takeaways:
>>Order our CBD products, which are legal in France<<
What does the law say about CBD?
Legislation surrounding cannabidiol has long been the subject of debate in France, which is undoubtedly one of the strictest European countries in terms of its legislation. In early 2023, CBD users were nevertheless reassured following the decision of the Council of State on 29 December 2022, which definitively authorised the sale and consumption of cannabidiol.
To avoid being classified as a narcotic, the Council of State states that ‘[p]roducts derived from hemp placed on the market must have a THC content not exceeding 0.3%. Otherwise, they fall under criminal law relating to the fight against narcotics.’
This decision had the advantage of clarifying the legal status of hemp in France. In line with the Court of Justice of the European Union, these provisions confirm that:
- Hemp extracts and hemp products are legal if the delta-9-tetrahydrocannabinol content is less than 0.3%.
- The sale and consumption of leaves and flowers are permitted under the same provisions.
CBD, provided its tetrahydrocannabinol content is below 0.3%, does not fall under the classification of ‘narcotic’. It is not subject to criminal law.
But then, why did the Court of Cassation rule otherwise in the case of the acquitted driver?
The Court of Cassation: the Highway Code at issue
What does the law say about narcotics and CBD?
As you know, ignorance of the law is no excuse, even when the law appears highly complex. In handing down its decision, the Court of Cassation appears to have given priority to the Highway Code, and in particular to Article L. 235-1, which stipulates that driving after using a narcotic constitutes an offence.
Unlike the issue of alcohol, there is zero tolerance when it comes to narcotics. Indeed, whilst you are permitted to drive after consuming a small amount of alcohol, with a specified limit of 0.25 mg of alcohol per litre of exhaled air, there is no such limit when it comes to narcotics.
In other words, there is no limit on dosage: even trace amounts are considered to constitute driving under the influence of drugs, even if you have consumed cannabidiol that complies with current regulations.
Furthermore, according to the appeal to the Court of Cassation, even though CBD is not a narcotic, the Highway Code takes a different view. The Deputy Advocate General, Ms Bellone, explains that “the liberalisation of the sale of certain cannabis-derived products cannot ipso facto render obsolete the provisions of Article L. 235-1 of the Highway Code relating to cannabis […] Therefore, where an individual has consumed a product still considered a narcotic and then driven a vehicle, the offence can still be upheld.”
In other words, driving after consuming CBD is considered an offence as long as traces of THC are detected. Cannabidiol, which is not a narcotic, becomes a narcotic when driving. This legal ambiguity bodes ill for users who were in the habit of consuming CBD as a substitute for THC.
Narcotics: dosage is irrelevant!
The decision of the Court of Cassation goes further. Indeed, the driver had been acquitted by the Rouen Court of Appeal “on the grounds that the toxicological report did not mention the tetrahydrocannabinol (THC) level, and that no investigation had been carried out to determine whether the cannabidiol (CBD) that the individual claimed to have consumed exceeded the permitted THC content.”
The Court of Cassation is clear: according to Article L. 235-1, it is not important to know the THC level, as the dosage is irrelevant to the recognition of the offence. According to this ruling, smoking CBD is therefore equivalent to smoking THC. Even the tiniest trace of tetrahydrocannabinol justifies the penalty. This decision is surprising, given that the failure of the officer conducting the test to inform the driver of the level constitutes a procedural irregularity.
A decision not without consequences: the penalties incurred
This renewed interpretation of the legislation surrounding THC is part of a drive to step up the fight against drugs. Emmanuel Macron, in an interview with the daily newspaper La Provence, stated a few days ago that he had asked the Minister of the Interior to draft a decree “so that fines (fixed penalties for drug use) can be paid immediately, by credit card or in cash”. Whether in terms of payment or the adjudication of offences, the justice system and the government are tightening the screws.
Recent developments regarding CBD on the road are not without consequence. A positive THC test, even if you have consumed cannabidiol, can lead to:
- 6 penalty points on your driving licence,
- A prison sentence of 2 years,
- A fine of €4,500.
Additional penalties may apply depending on the circumstances (alcohol consumption, causing bodily harm, etc.)
Screening tests: widely criticised
According to the Advocate General, ‘the mere finding of a positive result constitutes proof of drug use.’ This means that a positive screening result, usually from a saliva test, is immediately considered proof of drug use.
Whilst the driver may request a second opinion by taking a second saliva test, a blood test is no longer mandatory, although it is recommended. As for the reliability of the test, it is not called into question by the courts, as the level of drug absorption is not taken into account.
However, it has been found that saliva tests are not as reliable as they should be. A German study, carried out on the Rapid Stat saliva tests used by the French police, reveals a failure rate of over 13%. Not only are 2.5% actually false negatives, but a further 10.8% are false positives. Even if the driver were to request a second test, there would still be a proportion of convictions based on false positives.
This study has been validated by Dr Patrick Mura and his peers, as well as the work of Sarah M.R. Will, whose study revealed a 16% false positive rate.
Experts also highlight, according to Le Quotidien du Médecin, the risk of misinterpretation. The test is read ‘backwards’; it is the absence of colour that indicates a positive result, which adds a margin of human error to the test’s margin of error.
A question mark for CBD users
The decision raises questions and concerns about the future of CBD. This cannabinoid, favoured by users for its anti-stress and pain-relieving properties, is all the more beneficial as it is non-psychoactive.
Today, consuming it before driving can lead to an offence, just like THC. What’s more, the offence can be confirmed even if you are not under its influence, provided there are residual traces.
Generally speaking, we therefore advise caution, bearing in mind that cannabis can be detected for up to 8 days after consumption if you are a regular user. In the event of a positive test, we recommend requesting a second analysis. It may be wise to switch to CBD products without THC if you are a regular user.
