When does a person qualify as a caregiver under Californa’s medicinal marijuana laws? The Supreme Court ruled he or she must have provided patients some previous other form of caregiving in order to qualify as a “primary caregiver” and be immune from prosecution for growing or selling the drug.

The California Supreme Court unanimously ruled that a Santa Cruz County man whose caregiving consisted principally of supplying marijuana and instructing on its use, and who otherwise only sporadically took some patients to medical appointments, was not entitled to a jury instruction on the affirmative defense - meaning that he does not get the jury to even consider it.

Defendant had been arrested in 2003 and charged with cultivation of marijuana and possession for sale after sheriff’s deputies—acting on a tip from a bank teller who said that suspect made several cash deposits of more than $2,000 each over a three-month period in small bills smelling strongly of marijuana—found 190 plants, plus other drugs and firearms, during a search of his residence.

Defendant, who had a medical marijuana recommendation for colitis, dysphoria, and depression, said that he smoked about four marijuana cigarettes per day for medicinal purposes. However, the investigators concluded the operation was primarily a for-profit commercial venture after defendant admitted he sold the drug to five other medical marijuana users.

At trial, Defendant asserted that California’s Compassionate Use Act of 1996—which provides partial immunity for the possession and cultivation of marijuana by qualified patients and their “primary caregivers”—shielded him from prosecution because as he was the other users’ primary caregiver insofar as he had consistently assumed responsibility for their health by providing them medical marijuana upon a doctor’s recommendation or approval.

The act defines a “primary caregiver” as “the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person.”

The trial judge, despite granting defense request to instruct the jury that he was partially immune as a qualified patient, declined to instruct the jury on immunity as a primary caregiver after concluding that the evidence was insufficient to show defendant had provided such services, and the jury convicted him.

The appelate court explained that defendant was not entitled to the instruction because he had failed to “satisfy both halves [of the definition]—the ‘designee’ clause and the ‘responsibility’ clause.”Examining the latter, the justice explained that “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.”

Explaining that defendant’s evidence failed to demonstrate satisfaction of each of the three aspects, the revieiwng court concluded that the trial court had ruled correctly because the act “simply does not provide…protection where the provision of marijuana is itself the substance of the relationship.”

The court also rejected defendant’s argument that the 2003 enactment of the Medical Marijuana Program—which provides a defense to similar charges for those who give assistance to patients and primary caregivers in administering medical marijuana, and acquiring the skills necessary to cultivate or administer it—immunized his conduct.

“The Defendant, to the extent he assisted in administering, or advised or counseled in the administration or cultivation of, medical marijuana, could not be charged with cultivation or possession for sale ‘on that sole basis,’” she wrote. “It does not mean he could not be charged with cultivation or possession for sale on any basis; to the extent he went beyond the immunized range of conduct, i.e., administration, advice, and counseling, he would, once again, subject himself to the full force of the criminal law.”

Source: Law Blog

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