In California, primary caregivers are covered under the California Compassionate Use Act (“CUA”) 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 and qualify as a primary caregiver under the CUA
Who Can Qualify as a Primary Caregiver?
A prescribed 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:
- Consistently provide care-giving;
- The person you care for is legally entitled to use of medical marijuana; and
- You meet the legal definition of a primary caregiver under the CUA.
What are the Requirements for a Primary Caregiver?
A Under the California Medical Marijuana Plan, the marijuana primary caregiver is able to put in an application for an ID card and allow the primary caregiver to avoid arrest due to possession, cultivation and transporting of marijuana.
The cannabis patient also would need to have an ID card under the same state plan. In the state of California, the law does not require the marijuana caregiver to fill out any special documents for claiming the status of primary caregiver.
It is important to check with your county or city codes or ordinances to make sure that there are no strict requirements. Also, some states do not allow persons who have been previously convicted of a felony drug offense to become a primary caregiver.
What is the Legal Definition of a Primary Caregiver under CUA?
You qualify as a primary caregiver under CUA if:
- You have been designated for that purpose by a legal medical marijuana user;
- You are consistently responsible for that person's health, safety, and housing;
- The care you provide is independent of assistance you give the person in taking medical marijuana;
- You began taking care of the person at or before the time you began to be responsible for assisting with medical marijuana;
- You are over the age of 18; and
- Not the physician of the person you are caring for.
How Much Medical Marijuana is a Primary Caregiver Allowed to Possess?
A prescribed 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 prescription 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?
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.
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.
In other words, police should generally recognize the protection granted by a state issued medical marijuana ID card, but they can decide whether or not to believe a doctor’s 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. Certain states have certain limits on how many patients you may assist.
For example, the state of Michigan is permitted to assist up to 5 patients and they must provide a statement agreeing to provide marijuana to only qualifying patients who have named the primary caregiver as their primary caregiver.
Can a Primary Caregiver Receive Compensation for Their Services?
A registered primary caregiver is permitted to receive compensation when assisting qualifying patients for both:
- Actual out-of-pocket expenses incurred through caregiving; and
- Reasonable compensation for services provided to the patient.
When a primary caregiver receives compensation for their services and out-of-pocket expenses when assisting qualified patients to obtain medical marijuana, it is not considered illegal if they are qualified to be a primary caregiver and the person they are assisting is a registered, qualified patient. This would not constitute as the sale of a controlled substance.
Do I Need a Lawyer?
While California has legalized possession and use of recreational marijuana, there are still limits even if you are a primary caregiver you can still face severe penalties and fines for violating the law.
If you have violated California’s Cannabis Laws and will face penalties, then it’s important to contact a California criminal lawyer right away. As the law is still new, the way forward for cannabis users is unclear. But a legal professional can help you understand what is the next best step.