CALIFORNIA SUPREME COURT DEFINES “PRIMARY CAREGIVER” UNDER MEDICAL MARIJUANA LAW
November 25, 2008
On November 24, 2008, the California Supreme Court, in a unanimous decision, defined the term “primary caregiver” as used in the Compassionate Use Act (CUA) of 1996. California’s Health & Safety Code sec. 11362.5, was adopted following the passage of Proposition 215, and provides a limited defense from criminal prosecution to certain people who posses or grow marijuana.
In the case of People v. Mentch, S148204, the Court held that the CUA “provides partial immunity for the possession and cultivation of marijuana to two groups of people: qualified medical marijuana patients and their primary caregivers. We hold that a defendant whose care giving consisted principally of supplying marijuana and instructing on its use, and who otherwise only sporadically took some patients to medical appointments, cannot qualify as a primary caregiver under the Act….” (Emphasis added.)
According to the evidence presented by Mentch, he opened a care giving and consultancy business in March 2003, called the Hemporium, the purpose of which was to give people safe access to medical marijuana. He provided the drug to approximately five different people, each of whom possessed a valid recommendation for the use of marijuana. He did not profit from his sales of marijuana, he counseled his customers about the best strains of marijuana to use for their ailments, and he took “a couple of them” to medical appointments on a sporadic basis.
Primary Caregiver Defined
Prior to the trial the prosecutor moved to keep out references by defense counsel to Mentch being a “primary caregiver” for the people to whom he provided marijuana and he was calling as witnesses. The court agreed that the testimony those witnesses were to provide was insufficient to show that Mentch had provided them with primary caregiver services, as defined under the CUA. Mentch was convicted of cultivation and possession for sale.
He appealed to the Court of Appeal which reversed the conviction ruling that he “presented evidence that he not only grew medical marijuana for several qualified patients, but he also counseled them on the best varieties to grow and use for their ailments and accompanied them to medical appointments, albeit on a sporadic basis…,” and the decision of whether he was their “primary caregiver” should have been left up to the jury.
The Supreme Court held that “the statutory definition has two parts: (1) a primary caregiver must have been designated as such by the medical marijuana patient; and (2) he or she must be a person ‘who has consistently assumed responsibility for the housing, health, or safety’ of the patient.” The court concluded that “a defendant asserting primary caregiver status must prove at a minimum that he or she (1) consistently provided care giving, (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.” (Emphasis added.)
The Court went on to note that “primary caregiver status requires an existing, established relationship. In some situations, the formation of a bona fide care giving relationship and the onset of assistance in taking medical marijuana may be contemporaneous, as with a cancer patient entering chemotherapy….” However, the Court held, “what is not permitted is for an individual to establish an after-the-fact care giving relationship in an effort to thereby immunize from prosecution previous cultivation or possession for sale.” One who merely supplies a patient with marijuana has no defense under the CUA, said the Court, and one has to be a caregiver before he or she provides the marijuana.
Purpose of the CUA
The Court discussed the purpose of the CUA as one to help those who were seriously ill and who could benefit from the use of marijuana for medical purposes. It pointed out that the CUA’s “focus is on the seriously and terminally ill, [and] logically the Act must offer some alternative for those unable to act in their own behalf; accordingly, the Act allows ‘primary caregivers’ the same authority to act on behalf of those too ill or bedridden to do so. To exercise that authority, however, one must be a ‘primary’ — principal. lead, central — ‘caregiver’ — one responsible for rendering assistance in the provision of daily life necessities — for a qualifying seriously or terminally ill patient.”
In a footnote, the court stated that “the Act is a narrow measure with narrow ends. As we acknowledged only months ago, ‘the proponents ballot arguments reveal a delicate tightrope walk designed to induce voter approval, which we would upset were we to stretch the proposition’s limited immunity to cover that which its language does not.”
HOW THIS AFFECTS YOUR AGENCY
This California Supreme Court decision should finally resolve a major dispute among those who must deal with the impact of the state’s medical marijuana laws. It is now clear that to be classified as a “primary caregiver” one must be able to prove that he or she provided for the qualified patient’s needs prior to providing medical marijuana. Furthermore, those needs are now clearly articulated and include the rendering of assistance in the provision of daily life necessities to a seriously ill person. That includes assisting such a person with his or her housing, health and/or safety needs; it does not mean just providing medical marijuana.
As a result of the Court’s clear, distinct, articulation of who or what is a “primary caregiver,” the question of whether a marijuana dispensary falls within the definition is resolved — it does not! As is set forth in the law, a cooperative or collective can be formed to provide the needed marijuana for the members of that group. The Attorney General, in his recent guidelines, sets forth the legal basis for determining whether the dispensers of medical marijuana meet the definitions of a cooperative or collective – if they do not, they are not protected under the CUA and are operating illegally. It seems to be incumbent upon units of government, such as cities, to insure that businesses which want to distribute marijuana for medical use meet these legal requirements before issuing licenses and authorization to operate in their jurisdictions. Storefront dispensaries, which do nothing more than dispense marijuana, ostensibly for medical use, are illegal under both state and federal law and should not be permitted to operate in California.
It is imperative that you confer with your agency’s legal counsel before acting upon this information. As always, however, if you wish to discuss this matter in greater detail, please don’t hesitate to contact me at (714) 446 – 1400 or via e-mail at mjm@jones-mayer.com