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What Is A Primary Caregiver?

admin • May 18, 2021

Health and Safety Code §11362.7 (Prop 215 Remains In Effect)

WHO: A primary caregiver is an individual who is designated by the patient to consistently assume responsibility  for a patient’s housing, health and safety. At a minimum, a primary caregiver must prove that he/she (1) consistently  provides care for the patient; (2) provides care that does not have anything to do with medical marijuana; and  (3) provides care at or before the time that the primary caregiver assumed responsibility for assisting with the  patient’s medical marijuana needs. For more information, refer to People v. Mentch (2008) 42 Cal. 4th 274. 

See recent legislation under Prop 64 that limits the number of patients allowed and the area of grow  to 5 patients.  

Note from Bruce: providing marijuana alone does not qualify a person to be a patient’s primary caregiver. For  more information, see People v. Windus (2008). In addition, cannabis clubs or dispensaries do not qualify as  primary caregivers (People ex rel. Lundgren v. Peron (1997)).  

Health and Safety Code 11362.765(b)(3) extends protections to individuals providing assistance to a qualified  patient or an individual with an identification card, or to his/her primary caregiver when administering medical  marijuana/cannabis or acquiring the skills to cultivate or administer marijuana/cannabis. 

HOW TO: There is no requirement stating that a primary caregiver must be designated in writing. However, currently  under Prop 64 includes provisions for county health departments to issue an ID card for primary caregivers as well.  See page 16 on how to obtain County Health Department ID cards. 

REASONABLE COMPENSATION IS ALLOWED BUT NOT FOR PROFIT*: Prop. 64 added Section 26033 to  the Business and Professions Code, protecting patients and primary caregivers who cultivate an unspecified  amount for themselves or no more than five patients and 500 square feet, if they receive compensation only under  Subdivision (c) of Section 11362.765 of the Health and Safety Code. This includes reasonable compensation for  any services provided for the care of the patient and out of pocket expenses. Note that the term profit is not  defined by the law and is up to the discretion of the jury. Please refer to People v. Mentch (2008) 45 Cal. 4th 274  and People v. Windus (2008) 165 Cal. App 4th 634.  

Note from Bruce: 

  1. The “primary” caregiver is the individual rather than the organization. An individual or agency  can be deemed a “caregiver” when a patient receives either medical care, supportive services,  or both from a clinic, a health care facility, a hospice, or a home health agency. 
  2. The “primary caregiver” can care for more than one person. However, SB 420 prohibits  caregivers from having more than one patient residing outside the county of the caregiver.  This may be an unconstitutional restriction and is subject to challenge. (See Prop. 64) 
  3. There is not one case that states that a patient must be unable to grow his or her own  marijuana as a condition for having a caregiver. 
  4. Designated primary caregivers are also eligible for Health Department ID cards  
  5. Qualified patients or their primary caregivers will be exempted from retail sales tax on medical  cannabis, medical cannabis concentrate, edible medical cannabis products.

Possession of up to an ounce

By admin • 20 May, 2021
Reductions and Dismissals of Prior Marijuana Felonies  As of November 8, 2016, with passage of Prop 64., it is now Legal to Possess (and Give) an ounce of Marijuana & 8 grams of Hashish; California Health & Safety Code § 11362.1, 11362.45;  LAW: POSSESSION, BY ADULTS OVER 21, OF AN OUNCE OR LESS OF MARIJUANA […] The post Possession of up to an ounce first appeared on The Law Offices Of Bruce M. Margolin, ESQ.

Possession of Over an Ounce

By admin • 18 May, 2021
California Health & Safety Code § 11357;  Except as authorized by the law*, possession of not more than 28.5 grams of marijuana, or not more than four/ eight grams* of concentrated cannabis, or both, shall be punished or adjudicated as follows:  ALL ADULTS 21 OVER IN CALIFORNIA   LAW: POSSESSION OF OVER AN OUNCE OF MARIJUANA […] The post Possession of Over an Ounce first appeared on The Law Offices Of Bruce M. Margolin, ESQ.

Possession for Sale

By admin • 18 May, 2021
California Health & Safety Code § 11359 b MISDEMEANOR LAW: POSSESSION FOR SALE IS A MISDEMEANOR UNDER MOST   CIRCUMSTANCES: To sell means to exchange any amount of marijuana or  hashish for anything of value. Note that “giving away” up to an ounce of marijuana  is legal in the State of California involving adults over the age of […] The post Possession for Sale first appeared on The Law Offices Of Bruce M. Margolin, ESQ.
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Cultivation

By admin • 18 May, 2021
California Health & Safety Code §11362.2 & §11358 Misdemeanor /Felony  LAW: Cultivation of up to 6 live plants of Marijuana is legal per residence for adults  over 21; and you may posses whatever amounts have been previously grown, and  harvested (also in the residence).  Note from Bruce: You may want to keep the root-balls as evidence that […] The post Cultivation first appeared on The Law Offices Of Bruce M. Margolin, ESQ.

Driving Under the Influence (DUI) When Impaired

By admin • 18 May, 2021
Vehicle Code 23152e CA  PROP 64 DID NOT AMEND OR CHANGE LAWS REGARDING MARIJUANA DUI PROSECUTION   LAW: Even though possession of Marijuana is legalized, it remains unlawful to drive while under  the influence of marijuana or any drug if impaired to the degree that one is unable to operate a  motor vehicle safely.  PENALTY: For […] The post Driving Under the Influence (DUI) When Impaired first appeared on The Law Offices Of Bruce M. Margolin, ESQ.

Drug Testing and Employment

By admin • 18 May, 2021
Unfortunately notwithstanding the passage of Prop 64 (AUMA), the legalization of marijuana/cannabis in some instances, employers may still refuse to hire and fire persons that use marijuana/cannabis. California NORML has sponsored pending legislation, that will provide protections for patients from lose of  employment.  Ross v. Raging Wire Telecom [42 Cal. 4th 920 (2008)]- CA Supreme Court […] The post Drug Testing and Employment first appeared on The Law Offices Of Bruce M. Margolin, ESQ.

Forfeiture of Money and Property

By admin • 18 May, 2021
California Health & Safety Code §11470(e) Forfeiture laws allow state and federal governments to seize money and property that  are proceeds of, or are used to, facilitate illicit drug activity. Forfeiture proceedings are  usually filed separately from the criminal case in which the “defendant” is the money  or property itself. The owner must file a […] The post Forfeiture of Money and Property first appeared on The Law Offices Of Bruce M. Margolin, ESQ.

How to Avoid a Marijuana Possession Conviction for 18-21 Years of Age

By admin • 18 May, 2021
11357(b) H&S (And Save Your Driver’s License While Doing So)  Note from Bruce: Under California law, anyone younger than 21 years old who is convicted of a marijuana offense will lose his/her driver’s license for one year, even if the offense is not driving related; this is subject to the discretion of the Judge.   DEFERRED […] The post How to Avoid a Marijuana Possession Conviction for 18-21 Years of Age first appeared on The Law Offices Of Bruce M. Margolin, ESQ.

Destruction of Arrest and Conviction Records

By admin • 18 May, 2021
California Health & Safety Code §11361.5 Removing and   Expungement (PC §1203.4 ) of your Marijuana Conviction   California law requires all governmental agencies to automatically destroy any records of marijuana possession  charges and any records of charges for giving away or transporting up to one ounce of marijuana two years after  the date of conviction or […] The post Destruction of Arrest and Conviction Records first appeared on The Law Offices Of Bruce M. Margolin, ESQ.

Deferred Entry of Judgment (DEJ) = Dismissal

By admin • 18 May, 2021
PC §1000 & 100.94 (LA County) Charges for the possession of marijuana or hashish and for the cultivation of  marijuana for personal use can be dismissed through successful completion of  Deferred Entry of Judgment. DEJ is not applicable to charges involving possession  for sale or transportation unless the marijuana is for personal use. The defendant  must plead guilty to […] The post Deferred Entry of Judgment (DEJ) = Dismissal first appeared on The Law Offices Of Bruce M. Margolin, ESQ.
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