Pubdate: Thu, 27 Nov 2008
Source: Ukiah Daily Journal, The (CA)
Copyright: 2008 The Ukiah Daily Journal
Contact: http://www.ukiahdailyjournal.com/feedback
Website: http://www.ukiahdailyjournal.com/
Details: http://www.mapinc.org/media/581
Bookmark: http://www.mapinc.org/find?115 (Cannabis - California)
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)

CAREGIVER RULING WILL HELP LOCAL LAW ENFORCEMENT

This week's California Supreme Court ruling defining "caregiver"
under the Prop. 215 medical marijuana law, will go a long way to
helping local law enforcement in their jobs, according to local
sources. Most also say that the ruling finally spells out what has
always been very clear in the law.

"It will make a tremendous difference," Mendocino County District
Attorney Meredith Lintott said Wednesday. "It's finally providing us
with the tools we need to enforce the medical marijuana laws fairly, 
equitably, and without the kind of vagueness which has allowed things
- - in our county in particular, of course  - to expand into an area
where the county has been harmed. I don't think our medical marijuana
patients  have been harmed, but the residents have been harmed. Now
we can say we support, we back the use (of medical  marijuana) the way
the law intends it to be, but we will not allow you to trounce upon
the quality of the life of the other residents of our county."

Most agree that for the patients it should be no problem.

"I think that this is not going to have an effect on legitimate
patients and legitimate care providers,"  said Mendocino County
Sheriff Tom Allman. "The effect we're going to see is on people who
are making their living under the auspices of medical marijuana. And
I  don't think that's what the voters intended."

The case concerned the conviction of a Santa Cruz County medical
marijuana grower who was charged with marijuana cultivation and who
sought a defense on the basis of being the caregiver for five
different medical marijuana patients.

Even though the court accepted that he may indeed have been growing
medical marijuana, it ruled that he was not, in fact, a caregiver.
Under Prop. 215, the medical marijuana law, a caregiver is defined as
someone who actually provides for the housing, health and safety of 
the patient, and had that relationship before marijuana became part
of the treatment.

"There's a lot more to caregiving than growing  marijuana," Allman
said.

The change for law enforcement will come as they no longer have to
wonder whether to investigate marijuana growers who display
"caregiver cards."

Allman cited a case two years ago in Anderson Valley where deputies
were faced with a large marijuana garden and a grower holding 57
"caregiver cards." Under rules in effect in the county at the time,
that grower could possess 25 marijuana plants for each of those cards.

According to Commander Bob Nishiyama with the Mendocino  Major Crimes
Task Force, the law's been clear all along.

"I read over the decision. All (the court) did was basically look at
the law and say You know, this is what the law says.' Law
enforcement's been saying this for years," he said.

Both Nishiyama and Lintott said judges were in some part responsible
for allowing the caregiver defense to sprout into full bloom.

"I think because people themselves took it to such extremes and had
highly paid, well trained, persuasive lawyers and courts accepted the
arguments," Lintott said. "Once the courts started accepting the
arguments  and expanding the law to anyone who was providing 
marijuana, then the DAs, the prosecutors, and the people growing
start buying into the interpretation."

"Hopefully (local judges will) read (the ruling) and say Hey, this is
the law,'" Nishiyama agreed. "It's  like I've argued ... if you want
to grow your six plants at home and smoke it all up, I don't care,
but  when you're providing for every Tom and Dick and Harry that has
a marijuana recommendation, that's when it becomes a problem for us."

Nishiyama pointed out that the Major Crimes Task Force will still be
doing what it is doing now.

"Is this going to change the way we do business? No, not really.
We're still going after commercial dealers. The reality is, if people
would just read the law, it has always said that."

Allman said members of his department had a meeting on the ruling and
felt that it had come at a good time for the department to get
policies ready for 2009. He said  he'd like it if the California
Supreme Court would also make a ruling on the so-called Kelly
decision, in which an appeals court struck down the state's medical 
marijuana regulations limiting growing to six mature or 12 immature
plants and other provisions. (The court has a second such case from
which to rule as well.)

"If it comes out before the end of the year it will give true and
consistent direction to law enforcement," Allman said. "And it's not
just us. People call us every day and ask us what the law is for
marijuana. We have to tell them we don't know yet."

Allman, meanwhile, still believes in his idea for a zip tie program,
in which people growing medical marijuana as patients or caregivers
would buy number and color coded zip ties from the Sheriff's
Department to place  on each plant. If a deputy comes upon the plants
for whatever reason, the plant's legal status is easily  checked.
Allman would like the new Board of Supervisors to allow him to
proceed with the program by giving him permission to charge $25 per
zip tie. Allman used the  zip ties for awhile in 2007 and said he
thought they were a success.

"In January, the next step is to go to the board and see if they will
approve the cost for us to charge for these. If we recommend the
distribution, I still think it will save law enforcement time. It
will allow us to do our job and not burden legitimate medical
marijuana  growers."

Beyond the caregiver issue, the California Supreme Court's ruling
also made it clear that cannabis buyers clubs are not caregivers either.

Ukiah City Police Chief Chris Dewey said he got a legal brief this
week from the California Police Officers Association outlining how
police chiefs should view the ruling.

According to the brief: "As a result of the Court's clear, distinct,
articulation of who or what is a  primary caregiver,' the question of
whether a marijuana dispensary falls within the definition is
resolved --  it does not! As is set forth in the law, a cooperative 
or collective can be formed to provide the needed marijuana for the
members of that group. The Attorney General, in his recent
guidelines, sets forth the legal basis for determining whether the
dispensers of medical marijuana meet the definitions of a cooperative
or  collective - if they do not, they are not protected under the
(Compassionate Use Act) and are operating illegally. It seems to be
incumbent upon units of government, such as cities, to insure that
businesses which want to distribute marijuana for medical use meet 
these legal requirements before issuing licenses and authorization to
operate in their jurisdictions. Storefront dispensaries, which do
nothing more than dispense marijuana,! ostensibly for medical use,
are illegal under both state and federal law and should not  be
permitted to operate in California."

The city of Ukiah no longer has a medical marijuana dispensary in the
city limits, and Dewey said that while the city has fewer of the
kinds of problems with commercial growing than the Sheriff's Office
faces, the ruling this week helps.

"It will impact people's understanding of what it means to be a
caregiver. It clarifies that issue," he said.

No one was available at the Public Defender's office to discuss the
ruling.
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MAP posted-by: Larry Seguin