THE CHAVEZ TRIAL DEFINING 'CAREGIVERS'

Perhaps the most telling question in the Marvin Chavez marijuana sales
trial, which marked its second day yesterday in Division 16 of the court
building in Westminster, came from defense attorney David Nick as he was
cross-examining undercover officer Joseph Moreno. Mr.Nick, after laying a
foundation, asked the officer whether, in all his years as an undercover
narcotics officer, he had ever had a suspected drug dealer tell him that he
would not provide drugs unless he (the officer posing as a buyer) had a
letter from a doctor.

Mr. Moreno acknowledged that had never happened to him before.

A little later, after establishing that the small bag of marijuana Mr.
Chavez furnished to Mr. Moreno had a label with the words "Not for Sale" and
the name of the Orange County Patient Doctor Nurse Support Group on it, Mr.
Nick asked if Mr. Moreno had ever before encountered a suspected drug dealer
who furnished him a bag of drugs with the dealer's name on it.

Mr. Moreno also acknowledged that the first time he met with Mr. Chavez - a
meeting the prosecution didn't mention - Mr. Chavez first explained his
understanding of a patient's rights under Prop. 215, told him that a note
from a chiropractor would not be sufficient since chiropractors are not
"licensed physicians" authorized to write prescriptions, and explained the
forms that would have to be filled out before the support group could help.
The defense also grilled Mr. Moreno on some phone calls and investigative
procedures that were not recorded and not mentioned in police reports.

The line of questioning served to portray Mr. Chavez as someone who tried to
implement Prop. 215 conscientiously, as opposed to a conventional drug
dealer.

Earlier, Judge Thomas J. Borris, presiding in the trial, explored the
relationship between Mr. Chavez and Gene Hoffer, a medical patient who did
have a recommendation from a licensed physician. The issue troubling the
court is whether Mr. Chavez was Mr. Hoffer's "primary caregiver" as defined
(rather poorly in our opinion) in Prop. 215, which is now Section 11362.5 of
the Health and Safety Code.

Deputy District Attorney Carl Armbrust would like the court to adopt a
narrow interpretation of the words "primary caregiver" that would exclude
virtually anybody but a fulltime caretaker living with the patient or a
medical supervisor who also handled housing and feeding a patient. The
prosecution would also like to establish that a patient can have only one
"primary caregiver" under Section 11362.5, although most disabled people
rely on a network of people to support and help them. Issues such as how
often Mr. Chavez drive Mr. Hoffer to the store and whether Mr. Chavez could
have been the primary caregiver at the first meeting between the two have
loomed large.

This issue continues to be a legal source of trouble for people who are
trying to implement Prop. 215. The proposition was written (for the most
part) by the proprietors of the Cannabis Buyers Club in San Francisco, and
you would have thought they would have written it to reflect and authorize
their own activities. But in the most relevant appeals court decision,
Lungren v. Peron, the court ruled that Mr. Peron's San Francisco club did
not qualify as a primary caregiver for its customers clients whatever. That
decision is on appeal, but could have negative bearing on the Chavez case.

Judge Borris will decide later to what extent the defense can claim Mr.
Chavez was Mr. Hoffer's cargiver. He will make a similar determination with
regard to Shirley Reaves of Chico.

Mr. Chavez is alleged to have sent marijuana to Ms. Reaves through the mail.
During an evidentiary hearing without the jury present, her physician, Dr.
Tod Mikuriya of Berkeley, who more than 20 years ago edited a compilation of
scientific studies called "Medical Marijuana Papers," testified to his
examinations and ongoing relationship with Ms. Reaves, and affirmed that he
had signed a recommendation that she use marijuana. Ms. Reaves said there
were no reliable sources of medical marijuana in Chico, that she didn't want
to get it on the black market, and that although other clubs were closer,
Mr. Chavez's organization was the reliable source she had found for her
medication.

But the defense would like more than that. It wants to demonstrate that
through educational programs, advice, support in times of depression verging
on suicidal, and long telephone calls as well as occasional visits by Ms.
Reaves to Orange County that Marvin Chavez had more than a transitory or
supplier relationship with Ms. Reaves - that he fit the role of primary
caregiver. Whether Judge Borris will allow the jury to hear evidence to that
effect is yet to be decide; the evidentiary hearing was not complete as of
Tuesday afternoon and will resume early Thursday morning.

No court today. We'll keep you posted regarding a trial that could be
pivotal to implementation of Prop. 215.

Checked-by: Rolf Ernst