Studio Legale Bulleri: Driving Cannabis & Guidance

Giacomo Bulleri

Lawyer & Advisor

The centrality of the subjective element and application perspectives

I. Introduction
It is clear that the global diffusion of the process of regulation and legalization of cannabis involves new approaches and considerations on the issues of cannabis and its consumption.

If on the one hand there are some countries that have legalized the use of cannabis for recreational use (Canada and many US states first and foremost), on the other hand there are countries in which possession for personal consumption is sanctioned at an administrative level ( the majority of EU countries) and some where even simple consumption is criminally sanctioned.

Regardless of the level of regulation of cannabis, it can be said that an aspect common to all countries is the criminal and administrative sanctioning of driving under the influence of cannabis.

II. Driving under the influence of cannabis
Analyzing the case it can be highlighted how it is determined by two factors: a subjective element, i.e. the condition and behavior of the driver at the time of the investigation and an objective element, i.e. the analytical data (the positivity to cannabis) resulting from the tests to which the driver was subjected following the investigation.
For a correct examination of the issue it is necessary first of all to understand the characteristics and qualities of cannabis and the active ingredients contained therein.
In fact, cannabis contains more than 400 compounds, including around 80 known cannabinoids, of which the main ones are Delta-9-tetrahydrocannabinol (“THC”, responsible for the effects on the Central Nervous System) and Cannabidiol (“CBD”, with a peripheral effect, mainly on the immune system, on inflammatory modulation with no psychotropic effect).
Cannabis is currently included in Table I of the Single Convention on Narcotic Drugs of 1961 (“SC”) following its removal from Table IV in 2021.
Scientific studies have found that the effects of taking cannabis are influenced by a plurality of factors.
It is reasonable to state that traces of THC can be detected up to 7 days after intake in the blood, up to 30 days in the urine and even for months in the hair.
These variables are in turn related, on the one hand, to the methods, quality and quantity of the cannabis consumed and, on the other, to the subjectivity of the user (age, weight, habitual or occasional use, concomitant intake of other substances ).
It is therefore easy to understand how these factors can also affect the evaluations connected to the subjective and objective element of driving under the influence of cannabis.

III. The objective element
It is clear that each hypothesis of driving under the influence of cannabis is based on the analytical data according to which a subject tested “positive” in a test normally conducted on blood following a check while driving.
The analytical data (the “positivity”), however, due to the peculiar characteristics of cannabis, cannot be understood as absolute to integrate the case in question.
If on the one hand, in fact, the positivity certainly represents proof of cannabis intake, on the other hand it does not constitute proof that the subject was still under the psychotropic effect produced by the intake at the time of the assessment.
In the most advanced countries at a regulatory level (USA and Canada first and foremost) an attempt was made to identify an absolute weight figure capable of representing the threshold beyond which a subject could be considered to be under the psychotropic effect resulting from the intake of cannabis. and, therefore, to the extent of interest, which represented evidence of impaired driving: 1, 2 or 5 mg/L concentration in blood or plasma.
To this we must add that other factors must also be considered. The psychotropic effects of THC, in fact, are reduced after a certain period of time after consumption and this factor also varies depending on the type of user.
In particular, the study demonstrated how THC decreases on average by 74% after 1 hour and a half and by 90% after 1 hour and 40 minutes after intake, so in the case of delayed blood sampling after driving, the concentration of THC is reduced evidently. In this regard, it must always be considered that a certain period of time will always elapse between the time of driving and the time of the assessment (in the USA between 1.4 and 4 hours).
These studies have therefore demonstrated how an absolute weight data cannot be considered reliable as there are notable differences based on the type of intake (quality of the cannabis taken), the methods of the same (combustion, inhalation, ingestion) and the subjectivity of the assumptions that make the analytical data inapplicable in a uniform manner to all cases.
It can therefore be concluded that the positivity to cannabinoids detected in the blood cannot in itself represent sufficient proof to integrate the case of driving under the influence of cannabis, but it will always be necessary to also verify the subjective element.

IV. The subjective element
From the preceding considerations it is clear that the central element of the case in question is the state in which the driver is at the time of the check and his behavior.
Since this is a subjective element, a whole series of problems emerge which, regardless of the legislative differences and the different regulations regarding cannabis, end up falling on the investigating agent.
In fact, it must be remembered that for the crime of driving under the influence of drugs to exist it is necessary that the driver is actually in this state at the time of the investigation.
More simply: the crime of driving under the influence of drugs does not punish those who have taken drugs but those who drive while impaired by the use of such substances.
On the subject it is possible to recall some rulings of legitimacy which outline quite clearly the contours of the topic under discussion (ie the configurability of the crime referred to in art. 187 of the Code of Criminal Procedure which punishes driving under the influence of narcotic substances):
– “To purposes of the configurability of the crime referred to in the art. 187 CdS, paragraph 1, it is not sufficient that the officer drove the vehicle immediately after taking drugs but it is necessary that he drove in a state of alteration caused by such taking” (see Cassation Section IV Criminal, no. 39160 of 15/ 05/2013 – dep. 23/09/2013, PG in proceedings Braccini, Rv. 256830).
– “the crime in question is not integrated by the mere driving behavior of the person who has previously taken narcotic substances, but rather consists of driving in a state of psycho-physical alteration resulting from the taking of similar substances. This requires not only the verification of the historical data of their use but also that of the influence on the psycho-physical conditions of the user during the time of driving the vehicle” (see Cass., criminal section IV, 20.03. 2019 n. 12409, Pres. Piccialli, Est. Duties).
This orientation is in fact also implemented by the Courts of merit called to evaluate the existence or otherwise of the crime referred to in the art. 187 CdS.
Attention therefore shifts to the driver’s behavior and to this end the evaluation of the sobriety indices of the driver is highlighted, which in the USA are also finding their value in the forensic field.
Even on the subjective element, the subjective evaluation of the driver takes on a central role and, as for the objective element, the differences between habitual or occasional consumers.From
the data that emerged in a recent study, approximately 4/5 hours after taking a habitual cannabis user did not show a different driving impairment than someone who had taken a product with a placebo effect.
From this it can be deduced that when regular cannabis users monitor their intake, impairment based on THC content or blood concentrations is not automatic.
Even in the legal field, the circumstantial elements detected by the investigating agents and healthcare personnel become extremely relevant.
Therefore in all those cases in which the investigating officers or health personnel have not found (and recorded) elements that could determine an impairment of the ability to drive the vehicle, it is clear that we can never be in the presence of a subjective element capable of being able to integrate the crime of driving under the influence of cannabis, regardless of the blood results.
To simplify things, having taken cannabis (and therefore testing positive on the narcotic test) is not necessarily synonymous with driving under the influence of drugs.

V. The implications on the driving licence.
If in the criminal field the principles summarized above find consolidated application for the purposes of excluding the crime referred to in art. 187 CdS, it is in the administrative field that the greatest problems remain.
When a driver is found to be positive for cannabis, the administrative procedure relating to the driving license is also opened in parallel with the opening of criminal proceedings.
In fact, upon receiving news of a crime, the Prefecture issues a precautionary measure suspending the driving licence.
This provision also provides for the assessment of the psycho-physical suitability to drive of the driver who tested positive for cannabis pursuant to art. 119, c. 4, CdS
The prefectural provision pursues a ratio of protection of public order and public safety and, in fact, automatically follows the news of a crime following the positive cannabis test found in the driver and is qualified as a “due act and anticipatory criminal judgment “.
The real problems occur in application practice as the driver who tests positive for cannabis will on the one hand have to wait for the criminal proceedings to take place and, on the other, will find himself immediately deprived of his driving license which he will be able to regain following verification of suitability psycho-physical driving, i.e. obtaining the certificate of suitability from the local licensing medical commission, which subordinates the release of this certificate to the execution of an analysis (in most cases a trichological test) which certifies the negativity to drugs.
In practice, therefore, a contrast is generated between the criminal proceedings aimed at ascertaining the existence of the crime and the administrative proceedings aimed at protecting the needs of protecting public order and public safety.
It is clear in any case that the administrative procedure originates from the detection of the crime report (ie essentially from the driver testing positive for cannabis), which, however, must take the above elements into consideration in order to exist.
In fact, no requirement underlying the review of the driving license may exist for a person who was not driving under the psychotropic effects resulting from taking cannabis.
Unfortunately, there is still a strong discrepancy between regulatory provision and application practice which determines different interpretations and implications from case to case given the oscillation of the orientations of the various offices of the Justice of the Peace on the national territory (over 800 offices and more than 2000 justices of the peace) where sometimes the story is also characterized by prejudices and prohibitionist approaches that should have nothing to do with the case in point.
In consideration of the above, it becomes extremely important for the cannabis-positive driver to have specialist technical and legal assistance to go beyond the mere analytical data of cannabis positivity both in criminal and administrative matters (Judge of the Peace and local medical commission).

YOU. Training, information and education.
From the preceding considerations emerges, once again for the matter of cannabis, the correct evaluation of the scientific aspects in the legal field also borrowed from the North American experience.
From this it should be deduced that the only element that must (or should) be taken into consideration for the purposes of whether or not the crime is configurable is the subjective one.
If the driver does not present objective symptoms such as to highlight his impairment of driving ability (eg inability to drive the vehicle in a straight line, dysphoria, violation of road rules, responsibility for causing accidents, etc.) it appears superfluous to also undergo the driver to take a blood sample as this alone has no relevance for the purposes of establishing the crime.
This operating method should certainly represent the practice in the event of the driver showing a certificate attesting to the medical use of cannabis (obviously in countries where such use is regulated), but it should be extended more generally in all cases. – or at least in the case of ordinary checks – where no road accident caused by traffic offenses has occurred.
This is also in consideration of the enormous consequences that a crime of driving under the influence of drugs can cause in the context of civil compensation (non-compensation, compensation from the insurance company, etc.).
Given the pre-eminence of the subjective element, it is clear that the discretion of the investigating agent takes on central importance.
In this perspective, they should be in possession of correct operational training in order to have the appropriate evaluation tools for the correct evaluation of the case in order to avoid being induced to refer every evaluation to the results of blood tests.
It therefore assumes the need for a training/information/educational path intended for the police on the one hand, but also for drivers who consume cannabis on the other, who, as demonstrated by recent American studies, must be aware of their own psychological state -physical when they start driving.
From this perspective, it therefore appears desirable that cannabis follows the same training and educational path that has been applied to alcohol and which has led to a clear reduction in road accidents and victims.
This is also with a view to a progressive “normalisation” of cannabis consumption and its integration into the social fabric since, regardless of the substance taken (cannabis, alcohol or drugs), what matters when driving is being able or less than driving.


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