COURT: POT NOT ENOUGH TO QUALIFY AS CAREGIVER

Simply providing medical marijuana to a patient in need does not
constitute the legal definition of a primary caregiver and therefore
does not make a person immune from prosecution, according to a recent
California Supreme Court ruling.

While this unanimous interpretation by the state's high court might
make it easier for local law enforcement to combat illegal growers
and distributors who use the caregiver title as a guise, it could
also make it more difficult for patients to access legitimate medical
marijuana providers.

"This was an opportunity where the Supreme Court could make a major
expansion of the rights of caregivers and chose not to do it," said
Chris Conrad, founder of Safe Access Now, an organization devoted to
protecting medical marijuana patients and caregivers.

With this new ruling, Conrad said there will be a number of medical
marijuana patients that will have to go to other sources, such as
dispensaries, cooperatives and collectives, to receive their medication.

Under California's Compassionate Use Act of 1996, also known as
Proposition 215, voters approved the legal possession and cultivation
of medical marijuana for patients who had a valid doctor's
recommendation for the drug.

Also included in the law was wording to protect a patient's primary
caregiver from prosecution. This caregiver was defined as someone who
"has consistently assumed responsibility for the housing, health, or
safety" of the patient.

The state Supreme Court reiterated this definition of caregiver when
it made its decision on Nov. 24 to overturn the appeal of man who was
convicted of growing and selling marijuana.

In 2003, Roger Mentch of Santa Cruz County was arrested after bank
tellers reported to authorities that he was depositing large sums of
cash that smelled of marijuana in his account. This amount totalled
nearly $11,000 over two months.

When law enforcement searched his home they found 190 plants in
various stages of the growth cycle. Mentch told authorities that he
was a medical marijuana patient and was a caregiver for five other
patients who he sold the drug to and occasionally would take to
doctors' appointments.

Despite this, Mentch was charged with cultivation of marijuana and
possession for sale.

He was convicted of these charges, but during the proceedings the
judge refused to let the jury determine whether Mentch was a caregiver.

This decision was overturned by an appeals court that stated the
jurors should have been allowed to decide on Mentch's status as caregiver.

But on Nov. 24, the state Supreme Court again flipped the case over,
siding with the original trial judge.

The opinion, written by Justice Kathryn Mickle Werdegar, states, "a
defendant asserting primary caregiver status must prove at a minimum
that he or she (1) consistently provided caregiving, (2) independent
of any assistance in taking medical marijuana, (3) at or before the
time he or she assumed responsibility with medical marijuana."

Some examples Werdegar gave included live-in nurses, hospice care
workers and spouses or relatives who took care of patients before the
use of medical marijuana to treat ailments.

"The (Compassionate Use) 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," the ruling states.

Mentch did not meet the necessary requirements to use this defense,
Werdegar said, because he was not a bonafide caregiver under Prop.
215's intentions.

"The words the statute uses -- housing, health, safety -- imply a
caretaking relationship directed at the core survival needs of a
seriously ill patient," Werdegar wrote, "not just one single
pharmaceutical need."

Del Norte District Attorney Mike Riese said Monday the Supreme
Court's ruling eliminates the caregiver defense that is commonly used
by people arrested for growing and selling marijuana.

"This will make it easier to enforce the laws that are on the books,"
Riese said.

Ever since Prop. 215 was passed, he said law enforcement officials
have been hampered by the primary caregiver definition, and now the
Supreme Court decision clears up that ambiguity.

"The court's ruling effectively limits a caregiver's defense to
people who are really providing a service -- be it medical, be it day
to day living -- and it excludes those people just dispensing marijuana."