People operating storefront medical marijuana dispensaries, and people exchanging marijuana to other medical marijuana users for money, can be subject to felony and misdemeanor charges. One of the most common charges is possession of marijuana for sale under Health and Safety Code section 11359. A possible defense to a felony charge of possession of marijuana for sale under Health and Safety Code section 11359 is that the Medical Marijuana Program Act allows limited transfers of marijuana for money by primary caregivers and those in collectives. At Castillo Law Office, Oakland criminal defense attorney Ernesto Castillo aggressively defends those charged with marijuana crimes, whether sale, possession, or cultivation, and uses established California law to show that the medical marijuana patient or provider was operating within the law.
Although recent cases continue to define what a primary caregiver is, The Attorney General Guidelines on Security and Non-Diversion of Marijuana Grown for Medical Use provide much information on who can provide marijuana to another patient, and what the provider can receive in return. One provider is a primary caregiver:
A primary caregiver is a person who is designated by a qualified patient and "has consistently assumed responsibility for the housing, health, or safety" of the patient. (§ 11362.5(e).) California courts have emphasized the consistency element of the patient-caregiver relationship. Although a "primary caregiver who consistently grows and supplies . . . medicinal marijuana for a section 11362.5 patient is serving a health need of the patient," someone who merely maintains a source of marijuana does not automatically become the party "who has consistently assumed responsibility for the housing, health, or safety" of that purchaser. (People ex rel. Lungren v. Peron (1997) 59 Cal.App.4th 1383, 1390, 1400.) A person may serve as primary caregiver to "more than one" patient, provided that the patients and caregiver all reside in the same city or county. (§ 11362.7(d)(2).) Primary caregivers also may receive certain compensation for their services. (§ 11362.765(c) ["A primary caregiver who receives compensation for actual expenses, including reasonable compensation incurred for services provided . . . to enable [a patient] to use marijuana under this article, or for payment for out-of-pocket expenses incurred in providing those services, or both, . . . shall not, on the sole basis of that fact, be subject to prosecution" for possessing or transporting marijuana].)
In short, whether an individual or a storefront dispensary, there needs to be significant and sustained connections between the patients and the caregiver providing marijuana in exchange for money or services. Oakland criminal defense attorney Ernesto Castillo can prove that you lawfully provided medical marijuana as a primary caregiver.
Another situation when money can change hands for marijuana is in a collective. The Medical Marijuana Program Act does not define collectives, where assets and marijuana are shared between patients, but does expressly approve of collectives in Health and Safety Code section 11362.775. Recent cases make clear that a collective (or cooperative) consists of 1) qualified patients who have been prescribed marijuana for medical purposes, 2) have collectively associated to cultivate marijuana, and 3) are not engaged in profit-making enterprise. (People v. Jackson (2012) 210 Cal. App. 4th 525, 529.) The Attorney General Guidelines explains collective as follows,
California law does not define collectives, but the dictionary defines them as "a business, farm, etc., jointly owned and operated by the members of a group." (Random House Unabridged Dictionary; Random House, Inc.© 2006.) Applying this definition, a collective should be an organization that merely facilitates the collaborative efforts of patient and caregiver members –including the allocation of costs and revenues. As such, a collective is not a statutory entity, but as a practical matter it might have to organize as some form of business to carry out its activities. The collective should not purchase marijuana from, or sell to, non-members; instead, it should only provide a means for facilitating or coordinating transactions between members.
The requirements for a collective are both vague and strict, as seen detailed in the extensive Attorney General Guidelines. Therefore, having an experienced Oakland criminal defense attorney from Castillo Law to present your defense is very important. Castillo Law will hire an expert in the field of marijuana collectives and marijuana medicine to prove that your collective operated lawfully within California law. Castillo Law will also use the facts of the case to persuade the district attorney of the lawful transfer of marijuana, which can result in a favorable negotiated plea deal, not guilty verdict, or dismissal. You need a defense attorney with particular knowledge and skill in this area to succeed.
At Castillo Law Office, we have the experience and knowledge to aggressively fight your medical marijuana case. Call us today for a free consultation.