Pubdate: Sun, 30 Nov 2008
Source: Times-Standard (Eureka, CA)
Copyright: 2008 Times-Standard
Author: Thadeus Greenson, The Times-Standard
Referenced: The ruling
Referenced: The San Francisco Chronicle article
Cited: Americans for Safe Access
Bookmark: (Marijuana - Medicinal)

CA Supreme Court:


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. 
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