Four appellate courts have ruled on the medication privilege for cannabis within just a few months. The good news for patients: online prescriptions aren’t the problem. The inconvenient news: the dosage instructions are.
📑 Inhaltsverzeichnis
Anyone prescribed cannabis as a medicine is permitted to drive, even above the threshold of 3.5 nanograms of THC per milliliter of blood serum. This is regulated by Section 24a, Paragraph 4 of the Road Traffic Act, the so-called medication clause. It applies when the substance comes from the proper use of a medicine prescribed for a specific illness.
How much this regulation is worth is decided in court. Between March 2023 and July 2026, four appellate courts have addressed it, and their decisions can only be understood by distinguishing between two questions that are constantly conflated in the debate.
First Question: Must You Have Seen a Doctor?
The answer to this is now unambiguous, and it favors patients.
The Hamm Court of Appeal ruled on April 28, 2026, that applying the medication clause does not depend on whether there was personal contact between the affected person and the prescribing physician. The case number is 5 ORbs 87/26, and the full text is available in the case law database of North Rhine-Westphalia.
The Brandenburg Court of Appeal followed suit on July 30, 2026, case number 2 ORbs 85/26. A district court had convicted a patient with ADHD despite a valid online prescription. The state prosecutor’s office countered that the district court had „overstretched the requirements for a prescription,“ since the regulation contained no specific provisions on this point. The court also clarified that a patient may generally rely on the fact that a medical prescription has been issued properly. The doctor is liable for the thoroughness of the examination, not the patient.
The Oldenburg Court of Appeal had already ruled in the same direction on March 14, 2023, case number 2 ORbs 16/23. And the Bavarian Supreme State Court also did not require personal physician contact in its June 2026 decision, although it ultimately did not help the defendant. More on that below.
This means that the point most disputed in public has now been largely clarified at the appellate court level. A telemedically issued prescription is not a flaw. This is remarkable because the government is currently trying to restrict mail-order and telemedicine for cannabis, as we described in our article on telemedicine under pressure. The courts clearly distinguish here between professional law questions and the question of who bears the consequences in administrative penalty proceedings.
Second Question: What Must Be on the Prescription?
And this is where things get serious for patients, because this is exactly where the privilege fails in practice.
The Bavarian Supreme State Court ruled on June 12, 2026, case number 201 ObOWi 401/26: Proper use only occurs when use is based on a properly issued prescription with clear dosage instructions. In the case decided, the defendant was driving with 16.8 nanograms of THC in their blood serum and had obtained their prescriptions through an online consultation.
They failed not because of the online consultation, but because of how their prescriptions were worded. It was unclear whether the stated daily amount was a fixed requirement or merely a maximum amount. Additionally, the prescribed total quantity mathematically did not match the prescription’s validity period. Such ambiguity, the court ruled, contradicts the assumption of proper dosage instructions.
The court refers to Section 2, Paragraph 1, Number 7 of the Medicinal Products Prescription Ordinance, which requires dosage information or, alternatively, reference to a medication plan or written dosage instructions. Notably, there is an additional provision: even in cases of negligence, someone can be convicted if they could have clarified ambiguities through a simple inquiry with their doctor. The responsibility for reading one’s own prescription thus lies with the patient.
The Hamm Court of Appeal goes in the same direction, interpreting the regulation restrictively due to existing abuse potential and not permitting blanket or general clause-like prescriptions. Careful medical history and a reference to a specific illness are required.
What Patients Can Take Away From This
The four decisions provide a checklist that can be worked through in two minutes and, if it comes down to it, determines whether a fine is issued.
- Is there a dosage on the prescription? Not just a total amount, but an indication of how much to take and when. If it’s missing, there must be a reference to a medication plan or written dosage instructions.
- Is it clear whether the daily amount is fixed or an upper limit? Exactly this ambiguity cost the defendant the privilege in the Bavarian Supreme State Court.
- Do the amount and validity period match? If the prescribed amount lasts significantly longer or shorter at the stated dosage than the prescription is valid, it creates the exact ambiguity that courts object to.
- Does the prescription refer to a specific illness? A general prescription is insufficient.
Anyone who discovers ambiguities should clarify them with their prescribing practice before the next drive and have the clarification documented in writing. According to the Bavarian Supreme State Court’s line of reasoning, lack of knowledge does not protect you if an inquiry would have been possible.
Where the Limits of This Case Law Lie
Three limitations need to be mentioned to prevent this good news from creating false security.
- These are decisions at the appellate court level. Clarification by the German Federal Court of Justice remains pending. Without it, another court could decide differently, even if the current line appears uniform.
- The privilege only protects against administrative offense. Anyone who is actually unfit to drive commits a crime under Section 316 of the Criminal Code regardless. The Hamm Court of Appeal explicitly noted this. A prescription does not replace driving fitness.
- Proper use remains a prerequisite. Anyone who takes more than prescribed or uses the product differently than intended leaves the protected area, regardless of how clearly the prescription is worded.
There is also the separation between administrative penalty proceedings and driving license law. The licensing authority can investigate doubts about fitness even if nothing results from the penalty proceeding. How far this can go is shown by the case we reported on in our article about the administrative court proceedings in Berlin.
The Background Keeping This Issue Alive
The reason four appellate courts had to address the same regulation in such a short time is clear. Since August 2024, Germany has had a limit of 3.5 nanograms of THC per milliliter of blood serum, and THC remains detectable significantly longer than any impairment lasts, depending on usage patterns. What this means in practice is laid out in our overview of limits, rules, and rights, and how long the value remains detectable in the blood is explained in our article on how much THC a joint leaves in your blood.
How much a missing limit affects patients is shown by looking at Austria, where no defined value exists to this day and a popular initiative for its introduction is currently underway. In Germany, by contrast, the dispute has shifted from whether a limit applies to who can invoke the exception. The four rulings show that this question depends less on the type of physician contact than on the care taken in issuing the prescription.
Note: This article reflects the status as of September 9, 2026 and is not legal or medical advice. It does not replace medical consultation. The rulings mentioned are individual case decisions; whether and how they apply to a specific case can only be clarified by an attorney. Decisions regarding therapies and dosages are made by the treating physician; ongoing treatments should not be changed without professional guidance.
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Sources: Hamm Court of Appeal, ruling of April 28, 2026, case number 5 ORbs 87/26 (full text in the NRW case law database); Bavarian Supreme State Court, ruling of June 12, 2026, case number 201 ObOWi 401/26; Brandenburg Court of Appeal, ruling of July 30, 2026, case number 2 ORbs 85/26; Oldenburg Court of Appeal, ruling of March 14, 2023, case number 2 ORbs 16/23; Section 24a Road Traffic Act; Section 2, Paragraph 1, Number 7 Medicinal Products Prescription Ordinance; expert reporting in the blog of attorney Detlef Burhoff; own reporting.
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