Wednesday, November 26, 2008

Medical Pot Caregivers Should Provide More Than Just Marijuana, Says Calif. Supreme Court

Instead, the court held, it requires consistently providing the "daily life necessities" of patients well before marijuana is considered an option.

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

The 22-page ruling is bad news for the average medical marijuana grower who wants to sell to ailing friends, but good news for law enforcement officers who would like to rein in a growing number of outlaw caregivers around the state.

Berkeley solo Lawrence Gibbs, who represented a Santa Cruz County man claiming caregiver status, said the ruling "drastically narrowed the class of people who can qualify as primary caregivers" and forces those seeking medicinal pot to turn to government-approved collectives and cooperatives.

San Francisco-based Deputy Attorney General Michele Swanson, who presented the state's position, said the decision "draws the line more clearly" on who can be a marijuana caregiver.

"There have been a lot of illegal operations popping up," she said, "and this decision has made clear they are operating outside the law."

Roger Mentch was arrested in 2003 after narcotics investigators found 190 plants in various stages of development in his house. He claimed he grew so many plants because he was the primary caregiver for five other people, whom he counseled on usage, taught how to grow, and even sporadically drove to the doctor.

Mentch was charged with cultivating marijuana and possessing it for sale after officers decided he was running a for-profit business that enabled him to deposit as much as $5,500 a month in his bank account.

At trial, Mentch argued he should be allowed to present the affirmative defense that he was entitled to grow marijuana and sell it to others because he qualified as a primary caregiver under the Compassionate Use Act of 1996, codified as Health & Safety Code §11362.5. But Santa Cruz County Superior Court Judge Samuel Stevens refused.

Mentch received three years' probation. But San Jose's Sixth District Court of Appeal reversed his conviction last year, saying there was enough evidence that Mentch qualified as a caregiver to permit the affirmative defense at trial. The Supreme Court seemed torn on the issue at oral argument in October.

On Monday, the justices disagreed with the appellate court, holding in People v. Mentch, 08 C.D.O.S. 14435, that medical marijuana caregivers must have consistently provided care to patients before they found they might benefit from marijuana use.

"What is not permitted," Werdegar wrote, "is for an individual to establish an after-the-fact caregiving relationship in an effort to thereby immunize from prosecution previous cultivation or possession for sale."

Werdegar said the court's interpretation should "pose no obstacle" for bona fide caregivers.

"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," she wrote, "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 Compassionate Use Act, she added, "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 Supreme Court also tossed Mentch's argument that he deserved the affirmative defense under the medical marijuana statute that allows individuals to advise patients how to cultivate their own medical marijuana.

"As it is undisputed Mentch did much more than administer, advise and counsel," Werdegar wrote, "the program provides him no defense."

Mike McKee

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