SELF-HELP LAW: PEOPLE V. MENTCH DEFINES MARIJUANA CAREGIVER

The Compassionate Use Act of 1996 (Act) (Health & Saf. Code, ? 11362.5,
added by voter initiative in the November 1996 general election provides
partial immunity for the possession and cultivation of marijuana to two
groups of people: qualified medical marijuana patients and their primary
caregivers.

Roger Mentch was arrested in 2003 and convicted in 2005 for possession and
cultivation of marijuana for sale in Santa Cruz County. His conviction was
overturned on appeal in October 2006, primarily because the appeals court
believed the trial judge should not have instructed the jury Mentch was
not authorized by the law to sell or distribute marijuana.

The California Supreme Court examined the appeal, and on November 24 held
a person is not a "primary caregiver" under the Compassionate Use Act
merely because that person is in charge of getting someone's medical
marijuana. Giving someone care doesn't mean you're their "primary"
caregiver.

A "primary caregiver" is defined in the Compassionate Use Act as "the
individual who has consistently assumed responsibility for the housing,
health, or safety of that person," The court went further, and unanimously
held that not only does a primary caregiver under the Compassionate Use
Act have to be what we might traditionally call a primary caregiver, but
further held this relationship must also have been commenced at or before
the provision of medical marijuana. The court stated: "[W]e conclude 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 for assisting with medical marijuana."

Some pertinent language from the Mentch decision is " a primary caregiver
must establish he or she satisfies the responsibility clause based on
evidence independent of the administration of medical marijuana. Under the
Act, a primary caregiver relationship is a necessary antecedent, a
predicate for being permitted under state law to possess or cultivate
medical marijuana. The possession or cultivation of marijuana for medical
purposes cannot serve as the basis for making lawful the possession or
cultivation of marijuana for medical purposes; to conclude otherwise would
rest the primary caregiver defense on an entirely circular footing."

You can read the opinion of People v. Mentch by going to:
http://www.courtinfo.ca.gov/opinions/documents/S148204.PDF