CAL SUPREME COURT RESTRICTS CAREGIVER TO DEFININTION IN 215
Web Posted November 26, 2008

    On Monday the California Supreme Court strictly narrowed the definition of medical marijuana "caregiver" as provided in the state's Medical Marijuana Program. The decision takes effect immediately and impacts cases now before the courts.
    According to the decision in People v. Mentch, S148204 a caregiver must do much more than provide marijuana to a patient and the caregiving relationship must have existed prior to the provision of marijuana.
    This strikes down the main line of defense that many  growers have relied on, accumulating physician recommendation documents from multiple patients while being little more than exclusively contracted providers of marijuana to those individuals, oftentimes while also growing more for dispensaries or commercial sale. Proponents cited abuses of the caretaker model of marijuana defense to build support for Measure B, which sought to limit per patient plant limits to the state regulations of six mature or 12 immature plants.
    Although Measure B passed in June, there is a temporary stay against its plant limit subject.
    In addition the Attorney General has published medical marijuana guidelines that are self contradictory, and has asked the Supreme Court to review the Kelly and Phomphakdy decisions which struck down the protective plant limits in H&S §11362.77 on which the second subject of Measure B was based.
   
    California Health and Safety Code Section 11362.5, subdivision (d) provides: “Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.”  In turn, section 11362.5, subdivision (e) defines “primary caregiver” as “the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person.”  
    It is this plain language about "housing, health or safety" that has been overlooked up to now.
    In Mentch, the Court concluded that simply supplying someone with medical marijuana - or even taking them to the doctor now and then - does not make you a caregiver for the purpose of protecting you from prosecution for cultivating and transporting marijuana.
    "We have no doubt our interpretation of the statute will pose no obstacle for those bona fide primary caregivers whose ministrations to their patients the Act was actually intended to shield from prosecution. The spouse or domestic partner caring for his or her ailing companion, the child caring for his or her ailing parent, the hospice nurse caring for his or her ailing patient — each can point to the many ways in which they, medical marijuana aside, attend to and assume responsibility for the core survival needs of their dependents. The Act allows them, insofar as state criminal law is concerned, to add the provision of marijuana, where medically recommended or approved, as one more arrow in their caregiving quiver. It simply does not provide similar protection where the provision of marijuana is itself the substance of the relationship," the Court wrote in the decision.
    The California Supreme Court's decision stems from a case in Santa Cruz County in which Roger Mentch was convicted of marijuana cultivation and transportation even though he had a medical marijuana card and provided medical marijuana to five patients and two dispensaries. Two of his patients testified that he provided them with less than two ounces of dried bud per  month in return for small cash payments. He did not appear to be profiting from the operation conducted out of his house which he styled "The Hemporium."
    He was involved in a romatic relationship with one of the patients who was in the home at the time of his arrest with her young daughter. He had a small amount of cash, hash oil and concentrated marijuana as well as at least one weapon.
     175 marijuana plants were growing in separate room in his home and growing in his home and some 130 of these were mature plants.
    He was caught because he deposited over $10,000 in a local bank where a teller complained his money smelled so strongly of marijuana they had to store it outside the building.
    Mentch's defense was based on his contention that he was protected from prosecution by his role as a caregiver for others, defined by him as the person who took responsibility for a medical marijuana patient's health by providing that patient with marijuana.
    But he was convicted in trial court. He had the conviction reversed on appeal by arguing that the trial court judge should have instructed the jury that he conceivably had a caregiver defense.
    The California Supreme Court, however, decided to take the case in order to define caregiver in the law and since it went on to define caregiver as much more than supplying marijuana, the court concluded that the trial judge had correctly omitted the caregiving defense in the instructions to the jury and that Mentch's appeal had no basis.
    Dale Gieringer of CalNORML stated, "The Court's ruling effectively limits the caregiver defense to relatives, personal friends and attendants, nurses, etc. In particular, it excludes its use by medical marijuana buyers' clubs,' retail dispensaries and delivery services. The remaining legal defense for medical marijuana providers is to organize as patient cooperatives and collectives, which are legal under SB 420."