Pubdate: Mon, 24 Nov 2008
Source: San Jose Mercury News (CA)
Copyright: 2008 San Jose Mercury News
Author: Jennifer Squires, Sentinel Staff Writer
Bookmark: (Cannabis - Medicinal)


Medicinal marijuana caregivers may be prosecuted as drug dealers,
according to a state Supreme Court ruling issued Monday.

The ruling upholds a Santa Cruz County Superior Court jury decision
that found medicinal marijuana user Roger Mentch, 53, guilty of
cultivating and possessing marijuana for sale.

Mentch, who was arrested by sheriff's deputies in 2003, claimed he was
a caregiver for five medicinal marijuana patients. He also opened the
Hemporium, a medicinal marijuana collective in Felton, where he
sometimes sold the pot he grew.

"I was a caregiver with honest intent," Mentch said.

When jurors found him guilty and he was sentenced to three years
probation, Mentch appealed the decision on several points, including
that jurors were not properly instructed about medicinal marijuana
caregivers. The three-member 6th District Court of Appeals agreed with
him and overturned the jury's ruling.

However, the seven justices on the state Supreme Court reached a
different conclusion. The court ruled primary caregivers must have an
established care-giving relationship with the patient prior to
providing that patient with medicinal marijuana, according to the decision.

Also, primary caregivers can only provide pot to those patients, not
sell the drug to other medicinal users or collectives.

Therefore, Mentch's sales to the Hemporium and another collective in
the county amounted to dealing drugs on a street corner, according to
the court ruling.

The court stated that those acts "do nothing to insulate from
prosecution for his cultivation of and sale of marijuana for those for
whom he did not provide shelter or nonmarijuana-based health care...
nor would it protect him from prosecution for cultivating marijuana
and providing it to cannabis clubs."

Santa Cruz attorney Ben Rice, who is representing Mentch in a 2006
marijuana cultivation and sales case, said the court ruling is
unfortunate because it makes it harder for medicinal marijuana
patients who have a valid medical recommendation to obtain pot.

California voters approved Proposition 215 in 1996, giving ill people
the right to use marijuana legally as long as they have a prescription
from a doctor. However, the law did not outline how medicinal
marijuana could be distributed.

"There's no direction in the law, no explanation as to how people are
supposed to get their medicine if they can't grow it themselves," Rice
said. "It's an unworkable situation."

The Mentch decision narrowly defines the role of caregiver, but does
not affect cooperatives, including the Hemporium and the Wo/Men's
Alliance for Medical Marijuana in Santa Cruz, according to local
medicinal marijuana advocates.

Valerie Corral, one of the co-founders of WAMM, supported the court

"It further defines the role of caregivers and makes it clear. It's a
great way for people to understand our roles as caregivers and how we
have to assume something more," Corral said.

WAMM, a collective of patients and caregivers, provides medicinal
marijuana to ill patients. But Corral said WAMM goes beyond picking up
a patient's medicine by providing a community of support for ill members.

"We're at people's bedsides," she said.

Mentch, who continues to operate the Hemporium, said he still has hope
his case will turn out differently. The court system apparently only
addressed three of 10 issues brought up on appeal and he believes the
case will be returned to a lower court for further analysis.
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