Pompo

CA Supreme Court: Caregiver must do more than provide marijuana
11/30/08|The Times-Standard| by Thadeus Greenson - The Times-Standard



A recent California Supreme Court ruling out of Santa Cruz adds a bit of clarity into the often murky world of the state's medical marijuana laws, but some worry the ruling could leave some patients facing more challenges accessing their medications.

The court's unanimous ruling upheld a Santa Cruz County Superior Court jury decision that found medicinal marijuana user and care provider Roger Mentch guilty of possessing and cultivating marijuana for sale. In issuing the ruling, the Supreme Court determined that, in order to qualify as a primary caregiver, one must do more for a patient than provide them with marijuana.

Mentch, 53, was arrested in 2003 and charged with cultivation of marijuana and possession with intent to sell after a teller at Monterey Bay Bank noticed Mentch had deposited almost $11,000 in cash, mostly in small bills, over a a two-month period, according to court documents.

The teller also noticed that Mentch's cash often reeked of marijuana, sometimes to the point that the smell filled the bank, forcing it to remove the currency from circulation. After the teller filed a suspicious activity report with the local sheriff's office, an investigation was launched that found hundreds of marijuana plants growing in Mentch's home, prompting his arrest.

Mentch claimed he was growing the marijuana for himself, a medical marijuana patient, as well as five others, all of whom had medical marijuana prescriptions, and that he didn't profit from his marijuana growing operation.

But, during Mentch's trial, a judge ruled against instructing the jury on the affirmative primary caregiver defense for marijuana possession and cultivation. After being convicted on both offenses, Mentch appealed and an appeals court reversed both convictions. Then, the Supreme Court granted a review in order to address the meaning of a “primary caregiver,” which Senate Bill 420 defines as an individual designated by a qualified patient who “has consistently assumed responsibility for the housing, health, or safety of that patient.”

In affirming Mentch's convictions, the Supreme Court ruled that in order to qualify as a primary caregiver under California's Compassionate Use Act, Proposition 215, Mentch would have had to assume the responsibility for a patient's housing, health, or safety, or some combination of the three, in addition to providing them with marijuana.

”There has to be something more to be a caregiver than simply providing marijuana,” the Supreme Court ruling quotes the trial judge as saying. “Otherwise, there would be no reason to have the definition of a caregiver, because anybody who would be providing marijuana and related services would qualify as a caregiver, therefor giving them a defense to the very activity that's otherwise illegal, and I don't think that makes any sense in terms of the statutory construction, nor do I think it was intended by the people or the Legislature.”

While the lasting implications of Mentch's case are hard to decipher, advocates on both sides of the issue agree its short-term result will likely be more patients seeking to get their medical marijuana from patient cooperatives instead of from individual suppliers.

”Ideally, (the court ruling) won't have a tremendous effect,” Joseph Elford, a lawyer for Americans for Safe Access, a pro-medical marijuana group, told the San Francisco Chronicle. “Patients will now increasingly get their medication through collectives and cooperatives.”

But, local attorney Greg Allen said he thinks that might be an overly city-oriented way of looking at things, as areas like the San Francisco Bay Area and Los Angeles have a huge number of cooperative dispensaries, while more rural areas of the state don't have any.

”It was completely viewed with Los Angeles or Bay Area eyes,” Allen said. “If you live in Alpine County, what good does it do you if everything's channeled through cooperatives in Humboldt County, Los Angeles and the Bay Area?”

Careful to say he'd only read a summary of the decision and not the court ruling itself, Allen said he has some other concerns as well.

Because many cooperatives don't grow all the marijuana they sell or give out, they often rely on buying cannabis from individuals, like Mentch, who grow in their homes as caregivers and sell excess marijuana to dispensaries. If these “caregivers” aren't allowed to grow, Allen wondered, will that result in a shortage at the dispensaries?

If dispensaries bulk up their growing operations to make up for the possible shortage, Allen asked, will that make them a more likely target for federal raids?

The ruling might also completely change the caregiver landscape, Allen said, as medical caregivers may now be expected to grow marijuana in addition to their other duties. For a profession that often garners minimum wage, locally at least, Allen said that's a lot to ask.

”Let's just say (the Supreme Court) didn't miss by a little bit on this, they missed by a whole lot,” Allen said.

What this all means for the hordes of Humboldt County grow houses with 215 recommendations on the walls remains to be seen.

Arcata Police Chief Randy Mendosa said the court's ruling provides some relief for law enforcement, but likely won't directly change anything his police department does.

”Any time we can get some clarity on Prop. 215 we think that's a good thing for everyone involved,” Mendosa said.

But, because grow houses are generally the province of the Humboldt County Drug Task Force and the District Attorney's Office, Mendosa said those agencies, and not APD, are the ones who will have to decipher exactly what the ruling means on the North Coast.

”To me, this is a charging issue,” Mendosa said.

Deputy District Attorney Maggie Fleming, who handles the bulk of the district attorney's drug cases, and a spokesperson for the Humboldt County Drug Task Force were not available to discuss the court ruling by the Times-Standard's deadline.

Where Mendosa sees more clarity, Allen sees the Supreme Court's decisions as further muddying the waters that Senate Bill 420 aimed to clarify.

”Frankly, (S.B. 420) made order out of chaos. Now, it seems the Supreme Court is trying to move us back into chaos again,” Allen said, adding that this is just the latest in a string of the court's rulings against the rights of medical marijuana patients.

”How is this ruling consistent with providing patients with consistent and affordable access to their medications?” Allen asked.