Tuesday, December 23, 2008

Self-Help Law: People v. Mentch Defines Marijuana Caregiver

Self-Help Law: People v. Mentch Defines Marijuana Caregiver
The Compassionate Use Act of 1996 (Act) (Health & Saf. Code, § 11362.5, added by voter initiative in the November 1996 general election provides partial immunity for the possession and cultivation of marijuana to two groups of people: qualified medical marijuana patients and their primary caregivers.

Roger Mentch was arrested in 2003 and convicted in 2005 for possession and cultivation of marijuana for sale in Santa Cruz County. His conviction was overturned on appeal in October 2006, primarily because the appeals court believed the trial judge should not have instructed the jury Mentch was not authorized by the law to sell or distribute marijuana.

The California Supreme Court examined the appeal, and on November 24 held a person is not a "primary caregiver" under the Compassionate Use Act merely because that person is in charge of getting someone's medical marijuana. Giving someone care doesn't mean you're their "primary" caregiver.

A "primary caregiver" is defined in the Compassionate Use Act as "the individual who has consistently assumed responsibility for the housing, health, or safety of that person," The court went further, and unanimously held that not only does a primary caregiver under the Compassionate Use Act have to be what we might traditionally call a primary caregiver, but further held this relationship must also have been commenced at or before the provision of medical marijuana. The court stated: "[W]e conclude 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."

Some pertinent language from the Mentch decision is " a primary caregiver must establish he or she satisfies the responsibility clause based on evidence independent of the administration of medical marijuana. Under the Act, a primary caregiver relationship is a necessary antecedent, a predicate for being permitted under state law to possess or cultivate medical marijuana. The possession or cultivation of marijuana for medical purposes cannot serve as the basis for making lawful the possession or cultivation of marijuana for medical purposes; to conclude otherwise would rest the primary caregiver defense on an entirely circular footing."


News Hawk- BM www.rx215.com
Source: The Willits News
Author: Marc Komer
Contact: The Willits News
Copyright: 2008 The Willits News
Website:Self-Help Law: People v. Mentch Defines Marijuana Caregiver

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