Understand the decision of the Court of Cassation of June 21, 2023 on driving under the influence of THC and its derivatives

Summary of the Decision of the Court of Cassation

The Court of Cassation recently made an important decision concerning driving under the influence of THC , the psychoactive compound present in cannabis and its derivatives such as CBD , HHC , H4CBD and THCV .

This decision has far-reaching implications for road safety and drug testing procedures. The court's decision serves as a benchmark case for future drunk driving litigation.

In its decision, the Court of Cassation affirmed that individuals who drive vehicles under the influence of THC can be criminally liable for their actions regardless of how it was consumed. This means that drivers who are found with THC in their system can face legal consequences, just like those who drive under the influence of alcohol or other drugs even if they have only consumed CBD , HHC, THCV, H4CBD or any other derivative.

The court's decision recognizes the potential dangers posed by THC -impaired driving and aims to protect public safety on the roadways.

This follows the legal uncertainty that reigned in recent years regarding drivers who tested positive for THC but who, by providing proof of consumption of one of its derivatives, could see their sanctions cancelled.

This is no longer the case since June 21, 2023.

Court of Cassation - Criminal Division - Public hearing of Wednesday, June 21, 2023:

Statement of the means

• The argument is based on the violation of Article L. 235-1 of the Highway Code.

• The ground criticises the contested judgment in that it acquitted Mr [J] of the charge of driving after using narcotics, on the grounds that the toxicological report did not mention a level of tetrahydrocannabinol (THC) , and that it was not investigated whether the cannabidiol (CBD) that the person concerned indicated having consumed exceeded the permitted THC content, whereas Article L. 235-1 of the Highway Code criminalises the mere act of driving after using narcotics, without any reference to a dosage of narcotics to be established during the biological analyses of the offender's saliva or blood sample. Indeed, the decree of 13 December 2016 in force at the time of the facts, which sets out the procedures for screening for substances indicating the use of narcotics, and for the analyses and examinations provided for by the Highway Code, mentions a detection threshold and not an incrimination threshold. Furthermore, in accordance with the provisions of Article L. 235-2 of the Highway Code, the use of narcotics can only be established by means of blood or saliva tests, to the exclusion of all other checks such as the search for and dosage of tetrahydrocannabinol which may be contained in the CBD found during the offender's roadside check and which may be the one he declares to have consumed.

Court's response

Having regard to Article L. 235-1 of the Highway Code and Annex IV of the decree of 22 February 1990, as amended, taken for the application of Article L. 5132-7 of the Public Health Code:

• The first of these texts criminalises the sole fact of driving after having used narcotics, this use being established by a blood or saliva analysis , regardless of whether the level of narcotics thus revealed is lower than the minimum threshold provided for by the decree, in force at the time of the facts, setting out the procedures for screening for substances indicating the use of narcotics, which is a detection threshold and not an incrimination threshold.

• According to the second, tetrahydrocannabinol is a substance classified as a narcotic.

• In order to acquit Mr [J] of the offence of driving after using narcotics, the contested judgment states that, with regard to the presence of cannabis in saliva, the toxicological report, which states this, does not mention a THC level, and that, furthermore, no investigation was carried out to determine whether or not the CBD consumed by the person concerned exceeded the permitted tetrahydrocannabinol content, set at less than 0.20% at the date of the facts.

• The judge concludes that it follows from these elements and from the statements of the accused that neither the material element nor the intentional element of the offence has been established with certainty.

• In ruling in this way, while the authorisation to market certain cannabis derivatives , the content of which in delta 9 tetrahydrocannabinol , a substance itself classified as a narcotic by the aforementioned decree, is not greater than 0.30%, has no impact on the offence of driving after using narcotics, this offence being constituted if it is established that the accused drove a vehicle after using a substance classified as a narcotic, regardless of the dose absorbed, the Court of Appeal disregarded the aforementioned texts.

Cassation is therefore incurred.

Scope and consequences of the cassation

12. The cassation will concern the provisions of the judgment acquitting the defendant of the offence of driving after using narcotics and all the sentences imposed, the conviction for the offence of speeding, not criticised by the plea, being upheld.

FOR THESE REASONS, the Court:

QUASHES and ANNULS the above-mentioned judgment of the Rouen Court of Appeal, dated September 5, 2022, but only in its provisions acquitting the defendant of the offense of driving after using narcotics and those relating to penalties, all other provisions being expressly maintained;

And that he may be judged again, in accordance with the law, within the limits of the cassation thus pronounced,

REFER the case and the parties to the Rouen Court of Appeal, otherwise composed, as designated by special resolution taken in chambers;

ORDERS the printing of this judgment, its transcription in the registers of the registry of the Rouen Court of Appeal, and its mention in the margin or following the partially annulled judgment.

Impact on Road Safety

The Supreme Court ’s decision regarding THC -impaired driving has important implications for road safety. With the increasing prevalence of cannabis use, it is crucial to address the potential risks associated with THC- impaired driving. The decision highlights the importance of ensuring public safety and reducing the number of accidents caused by individuals operating vehicles while intoxicated. A key aspect that this decision highlights is the need for effective drug screening products. As more countries and states legalize cannabis for medical or recreational use, law enforcement agencies face challenges in detecting and deterring impaired driving. The decision highlights the importance of reliable and accurate drug screening methods that can detect THC impairment in drivers.

Legal and Practical Consequences

The Court of Cassation’s decision on driving under the influence of THC has important legal and practical implications. From a legal perspective, this decision sets a precedent for how cases involving THC impairment will be handled in the future. It clarifies the liability of individuals who choose to drive a vehicle under the influence of THC, making it clear that such behavior is illegal and subject to criminal penalties.

This decision also has practical implications for law enforcement and drug testing companies. With the increasing prevalence of THC impairment cases, it is becoming imperative for authorities to have reliable and accurate drug testing products. The decision puts pressure on drug testing companies like TODA PHARMA to continue developing innovative solutions that can effectively detect THC in individuals who may be driving vehicles or engaging in other potentially dangerous activities.

The authorisation to market certain cannabis derivatives, the content of which in delta 9 tetrahydrocannabinol , a substance itself classified as a narcotic, is not greater than 0.30%, has no impact on the offence of driving after using narcotics, this offence being constituted if it is established that the accused drove a vehicle after using a substance classified as a narcotic, regardless of the dose absorbed.

In conclusion, the Court of Cassation 's decision regarding THC -impaired driving has both legal and practical consequences. It sets a precedent for future cases involving THC impairment, underlines the need for reliable drug testing products, and highlights the importance of road safety.

As we move forward, it is crucial for individuals to understand the seriousness of operating a vehicle under the influence of THC and for authorities to implement appropriate measures to ensure public safety on our roads.