Cal NORML Release – Nov. 24, 2008

In a blow to medical marijuana providers, the California Supreme Court ruled that defendants are not entitled to a defense as Prop. 215 caregivers if their primary role is only to supply marijuana to patients. The court unanimously overruled an appellate court decision in the case People v. Roger Mentch, writing:

” We hold that a defendant whose caregiving 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 and was not entitled to an instruction on the primary caregiver affirmative defense. We further conclude that nothing in the Legislature’s subsequent 2003 Medical Marijuana Program (Health & Safety Code, 11362.7 et seq.) alters this conclusion or offers any additional defense on this record. ”

Prop 215 defines “primary caregiver” to be the “individual designated by the [patient]… who has consistently assumed responsibility for the housing, health, or safety of that

person.”

According to the Court, these words “imply a caretaking relationship directed at the core survival needs of a seriously ill patient, not just one single pharmaceutical need. ”

The Court concluded, ” 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. ”

The Court’s ruling effectively limits the caregiver defense to relatives, personal friends and attendants, nurses, etc. In particular, it excludes its use by medical marijuana “buyers’clubs,” retail dispensaries and delivery services.

The remaining legal defense for medical marijuana providers is to organize as patient cooperatives and collectives, which are legal under SB 420.

“The Mentch decision highlights the inadequacy of California’s current medical marijuana supply system,” said Cal NORML coordinator Dale Gieringer. “The law needs to allow for professional licensed growers , as with other medicinal herbs.”

– D. Gieringer Cal NORML