- Posted by Shari Tocchini, Esq
- On May 3, 2016
- California, California Department of Public Health, cannabis, Cannabusiness, Caregiver, Compassionate Use Act of 1996, Dennis Peron, Kyndra Miller, law, marijuana, Medical Marijuana, Medical Marijuana laws, Prop 215, regulation, SB420, Shari White
A primary caregiver is a person who consistently assumes the responsibility for the housing, health or safety of the applicant (patient). This may be an individual or the owner, operator or employee of an appropriately licensed clinic, facility, hospice, or home health agency. A “primary caregiver” is narrowly defined under Prop. 215 to be “the individual designated [by a legal patient] who has consistently assumed responsibility for the housing, health, or safety of that person.” As a primary caregiver you cannot apply for a card for yourself. Your patient must apply for you.
Medical Marijuana Primary Caregiver Laws in California.
In California, primary caregivers and patients with medical prescriptions are exempt from criminal liability for the possession and cultivation of medical marijuana. However, in order to enjoy exemption from criminal liability as a primary caregiver, one must ensure that they meet the requirements set by the California Compassionate Use Act of 1996.
Who Can Become a Primary Caregiver?
A medical marijuana patient can designate anyone they choose as their primary caregiver. However, in order for the designated primary caregiver to qualify for the criminal liability exemption, they must actually provide care-giving services to the patient beyond just the assistance with medical marijuana. Under California law, a designated primary caregiver must “consistently assume responsibility for the housing, health, or safety of the patient.” California courts have interpreted this to require that a designated primary caregiver:
1. Consistently provide care-giving,
2. Independent of any assistance in taking medical marijuana, and
3. At or before the time he or she assumed responsibility for assisting with medical marijuana.
How Much Medical Marijuana Is a Primary Caregiver Allowed to Possess? A medical marijuana patient and their primary caregiver are permitted to possess up to 8 ounces of dried marijuana and can maintain up to 6 mature or 12 immature plants. However, a doctor may write a recommendation permitting the patient and caregiver to carry a greater amount reasonably related to the needs of the patient.
How Does One Prove They Are a Primary Caregiver to Police?
1. State Issued ID Cards: The most secure way to prove one’s status as a primary caregiver is to apply for a state issued medical marijuana ID card through the California Department of Public Health. A qualified caregiver who possesses a state issued medical marijuana ID card should generally be protected from arrest and marijuana seizure. The California Department of Public Health’s Medical Marijuana Identification Card Program (MMICP) was specifically established to create a State-authorized medical marijuana identification card, along with a registry database for verification of qualified patients and their primary caregivers. Participation by patients and primary caregivers in this identification card program is voluntary. The web-based registry allows law enforcement and the public to verify the validity of a qualified patient or primary caregiver’s MMIC as authorization to possess, grow, transport, and/or use medical marijuana within California. (The verification website is available on the internet at http://mmic.cdph.ca.gov. https://www.cdph.ca.gov/programs/MMP/Pages/default.aspx)
2. A Valid Prescription or Doctor’s Note: As an alternative, one can protect his or herself from arrest and marijuana seizure with a valid prescription or doctor’s note. However, these notes are less secure than a state issued ID card as police are granted more discretion in their determination of the validity of the prescription note.
Can Someone Serve as a Primary Caregiver for More than One Patient? An individual may serve as primary caregiver for more than one patient so long as the primary caregiver lives in the same city or county as the patients they serve.
Can a Primary Caregiver Receive Compensation for Their Services? A primary caregiver is permitted to receive compensation for both:
1. Actual out-of-pocket expenses incurred through care-giving, and
2. Reasonable compensation for services provided to the patient.
The Supreme Court of California addressed the extent to which Health and Safety Code Section 11362.5(d) provides immunity from prosecution in People v. Mower (2002) 28 Cal. 4th 457. The Court interpreted the Compassionate Use Act as conferring a “limited immunity” from prosecution which decriminalizes conduct that otherwise would be criminal. Id. at 470, 473. The Mower Court made clear that the limited immunity also applies to those persons assisting a qualified patient, transporting or administering marijuana for medical purposes to the qualified patient. “By its terms, section 11362.5(d) provides that sections.. .which criminalize the possession of marijuana‘shall not apply to a patient, or . . . a patient’s primary caregiver, who possesses marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.’” Mower, supra, 28 Cal.4th at 470-471.
Under the statute, those persons assisting a patient, pursuant to a valid recommendation, also have the same procedural mechanisms available to him or her as a patient would under this limited immunity. Proposition 215, the voter initiative which re-legalized the possession of marijuana for medical use, states its purpose is “to ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.” Cal. Health and Safety Code section 11362.765 (b)(1).
The State Supreme Court has ruled that defendants are not entitled to a caregiver defense if all they do is grow or supply medical marijuana to patients. In the case People v. Mentch (2008) (2008) 45 Cal. 4th 274, the court ruled: “a defendant whose caregiving 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.” The court went on to specify: “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.”
A provision in SB 420 forbids caregivers from having more than one patient outside their own “city or county.” The constitutionality of this provision is questionable because it appears to restrict Prop. 215; also, the limitation to a single “city or county” is ambiguous. So far, no appellate court has ruled on the legality of this restriction; while it is included in the Attorney General’s guidelines, it has been disregarded in some lower court rulings. Until this legal issue is settled, prospective caregivers are advised to be cautious about trying to serve many clients outside of their “city orcounty.”
The courts have held that cannabis clubs cannot serve as legal “primary caregivers” for large numbers of patients. Some persons have claimed caregiver status while growing for multiple numbers of patients on the theory that they are providing for their patients’ health or safety. This defense has been successful in court for caregivers growing for small numbers of patients. However, it was rejected by a state court of appeals in the Peron decision, where the court held that Peron’s San Francisco Cannabis Buyers’ Club could not reasonably claim to function as a “primary caregiver” for its 8000 clients.
In general, dispensaries who cater to walk-in clients should not hope to rely on the caregiver provision. Caregiver growers should limit themselves to a select membership list of patients whom they personally know and who do not have other caregivers. Within these constraints, SB 420 allows caregivers to be compensated for the costs of their services, but it does NOT authorize sale of the marijuana itself for profit.