November 24th, 2008 By: Allen St. Pierre, NORML Executive Director
Smelly Money Leads To Major Legal Review Of California’s Medical Marijuana Distribution
In an important legal case decided today that cannabis reform advocates have been waiting on for nearly two years, the California Supreme Court ruled that criminal defendants are not entitled to a defense as Proposition 215 (Prop 215) caregivers if their primary role is only to supply marijuana to patients.
“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 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 & Saf. 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 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. ”
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,” California NORML coordinator Dale Gieringer told the Indy Bay News . “The law needs to allow for professional licensed growers, as with other medicinal herbs.”
Amazingly, this case found its way to California’s high court because bank tellers reported Mentch to law enforcement because his cash deposit smelled strongly like cannabis (Mentch was caught with approximately 200 cannabis plants that he believed he was lawfully tending, in compliance with Prop 215, for five medical patients who possessed a physician’s recommendation).
Full text of the People vs. Mentch is found here. Listen to NORML Legal Counsel and founder Keith Stroup on today’s AudioStash talk about the significance of the court ruling and likely implications on how patients can continue to lawfully access medical cannabis.