The (near) demise of the primary
caregiver defense: PEOPLE v.. MENTCH
by Donald Lipmanson
California's Supreme Court has drastically narrowed the
range of people to whom Proposition 215 (The Compassionate Use Act of 1996)
grants a degree of immunity from prosecution for possessing, cultivating or
transporting marijuana.
In its November 24, 2008 ruling in the case of People
v. Roger Mentch, the high court settled, at least for now, the question of
who may qualify as a "primary caregiver" lawfully entitled to provide marijuana
to a seriously ill person holding a physician's recommendation or approval.
Their short answer is that most people will not qualify if their care-giving
consists primarily of supplying marijuana to a patient.
The Court also ruled that the state's Medical Marijuana Program (a.k.a.
SB 420) does not give a caregiver any additional defenses beyond what is contained
in Prop. 215.
Smelly Cash:
Mentch's problems with the law began when over the course
of two months, he deposited about $11k in a Santa Cruz bank, cash that so
reeked of marijuana that it was withdrawn from circulation and led the bank
teller to file a suspicious activity report. A search warrant led to
the seizure of 192 indoor plants (57 of which were small clones) and a single
215 recommendation.
Mentch told the cops that he got four harvests each year
and smoked four joints per day, using up to two ounces per month. He
admitted selling most of his excess at below street prices to five other medical
users - all of whom had valid recommendations and occasionally were driven
to their medical appointments by Mentch - or occasionally to a club.
He claimed he never turned a profit and didn't always recoup his growing costs.
A Monterey County jury convicted Mentch of cultivation
and possession of marijuana for sale. In upholding his conviction, the
Supreme Court explained that a genuine Prop. 215 care-giver must show that
s/he 1) had been designated as primary caregiver by a legitimate medical marijuana
patient; 2) consistently provided care-giving, by assuming responsibility
for the patient's housing, health and/or safety no later than when s/he first
began providing the patient with marijuana; and 3) the care-giving was independent
of marijuana-related services to the patient.
Simply providing marijuana to a legitimate patient does
not make one a caregiver, no matter how consistently the marijuana is furnished.
Much More than Marijuana:
The Court explained that a genuine caretaking relationship
is directed at "core survival needs of a seriously ill patient, not just pharmaceutical
need." A Prop. 215 caregiver must be a "lead" or "central caregiver,"
responsible for helping provide daily necessities of life for a seriously
or permanently ill patient. Simply providing marijuana to a legitimate
patient does not make one a caregiver, no matter how consistently the marijuana
is furnished. For that reason a cannabis club that simply requires
a patient to designate the club as primary caregiver does not qualify for
that status.
The timing of the care-giving relationship also is critical
to its legitimacy. To be immune from prosecution for cultivating, possessing
or transporting marijuana, the caregiver must not have provided the patient
with marijuana before the care-giving relationship went into effect.
One cannot establish an after-the-fact care-giving relationship in order to
avoid prosecution. People most likely to qualify as primary caregivers
under Prop. 215 include the spouse, domestic partner, child or parent of a
patient, or licensed hospice nurses.
Conduct that undermines what might otherwise be a valid
caregiver claim includes diverting any portion of one's medical marijuana
to even a single person who is not a valid patient, or supplying a cannabis
club or cooperative. To bolster its decision, the Mentch opinion quoted
the ballot argument in favor of Proposition 215, which was "not intended to
protect anyone who grows too much or tries to sell it."
Finally, the Court mentioned that states like New Mexico
and Vermont only require that a caregiver assume responsibility for "managing
the well-being of a patient" with respect to their use of medical marijuana.
To this criminal defense lawyer, the Court appears to
be telegraphing its understanding that the Mentch decision may cripple truly
needy patients' access to an important medication, along with a recognition
that the definition of primary caregiver under Prop. 215 may need to be liberalized
to avoid that harmful outcome. •
Donald Lipmanson is a defense attorney practicing in Mendocino County.
For more information, email him dlipman@mcn.org or call 462-5838