Colorado ruling on caregivers - People vs. Clendenin

[qatsi]

http://www.cobar.org/opinions/opinion.cfm?opinionid=7372&courtid=1

Therefore, we conclude that the act of supplying marijuana for medical use, by itself, is insufficient to constitute significant management responsibility for a patient’s well-being, and consequently is insufficient to constitutionally qualify a person doing so as a "primary care-giver."

So, I am not a Lawyer but it looks like primary caregivers have to do more than provide mmj to their patients, like actually be a caregiver. The ruling says that California and Washington have adopted this same sort of reasoning. Are the growers/dispensaries in Colorado who have spent a lot of effort to get patients signed up effed?

What are the consequences of this? Any thoughts?

 

[Spacecadet01]

Here is some Leading attorneys opinion on that ruling...If you are growing or caregiving and not supplying wellness services..you can be prosecuted! Be safe people.

Its looking like after that ruling that vendors to dispensaries are not protected form prosecution unless they somehow become part of the patients care. Meaning that they have to do more for the patients then just sell there herb to said dispensary. Wellness centers wont be touched by this..but store fronts that just sell MMJ are in fact prosecutable.

quote from WARREN EDSON ::

I am just saying that if you do not offer wellness services as part of your "caregiving" package, you could be arrested tomorrow if you grow or distibute to others. The DA's could start filing cases tomorrow using the new definition without any legislation at all.



Warren Edson, Esq.
1490 Lafayette St., Suite 407
Denver, CO. 80218
(303) 831-8188
warrenedson.com


QUTOE FROM BRETT BARNEY ::

I concur with Warren on this matter. I think the decision is clearly indicative of the collective mind of the appellate panel, and how they will treat any future appeals, at least until the legislature acts. The Court?s specific holding in Clendenin was that ?to qualify as a ?primary caregiver?, a person must do more than merely supply a patient who has a debilitating medical condition with marijuana.? Unfortunately, or fortunately, the Court does not go on to say exactly how much more is required to be a ?primary caregiver? and therefore does little to help us understand to what extent one must be involved in the patients care regimen to be protected by the affirmative defense. What is clear is that those whose only service provided to a patient involves supplying medicine will be subject to prosecution, and will be unlikely to be permitted to avail themselves of the benefit of the affirmative defense in a manner that will be successful. This may vary from jurisdiction to jurisdiction at the trial court level, but on appeal, one can expect this result. At the trial level, the court acts as the finder of fact, and based on the facts presented, determines whether the defendant is entitled to present the affirmative defense at trial. The Appeals panel found no error in the Boulder trial court?s conclusion that Clendenin?s lack of personal relationship with her patients precluded her from asserting the defense, so from this decision, we can take away two pieces of knowledge; 1) caregivers should know their patients personally, and 2) they should be involved in the patients care in a way that involves more than ?merely supplying a patient ?with marijuana.?



I think this decision will have little bearing on those caregivers who are providing a ?wellness center? approach to caregiving (as Warren has indicated, ?Mentch like wellness service?). This will, however, likely have repercussions for those who have storefronts, whose only function is to dispense medicine. I am more concerned for those vendors who have ?subcontracted? with patients, through another caregiver, for the production of the medicine. While these individuals are, in essence, making the great majority of the medicine easily available to patients, I fear that they have little protection after this decision, unless they have a greater role in the patient?s care than most I have encountered.

 

[HossCartwright]

This issue is already being discussed here: http://www.icmag.com/ic/showthread.php?t=136336&page=8

 

[Spacecadet01]

I hear ya Hoss..just trying to make sure that those quote are spread far and wide. Its important for the people to understand the ramification of this decision. Hope there no offense taken.

 

[HossCartwright]

I hear ya Hoss..just trying to make sure that those quote are spread far and wide. Its important for the people to understand the ramification of this decision. Hope there no offense taken.

Yeah maybe you guys are right for starting a separate thread for this issue. I just got off the phone with a buddy that said he just spent some time trying to find a thread on icmag that talked about the case but couldn't.

This is pretty important stuff. Crazy how the climate can get turned upside down overnight.

I wish I had more facts of the case. If I understand correctly, she was a licensed patient/caregiver BUT she had never actually met any of her patients. Is this correct?

Because other articles make it sound as though she only had HER LICENSE and was growing 5-6x the limit and then wholesaling to dispensaries claiming the product ended up in the hands of med patients.

I'm trying to figure out if her lawyer argued the caregiver defense for somebody who wasn't actually a caregiver, thereby screwing over all the CO caregivers who were following the originally intended model before all this talk of adding massages, acupuncture and errand running to the mix to cover our asses.

 

[Spacecadet01]

How I understand it was that she was a licensed caregiver. She was selling her meds to patients thru a dispensary. She didn't know her patients at all. She just sold meds to said dispensary. All this did was lay a frame work for the appeals court to make this ruling. So basically if you are being a caregiver to stay "legal" and out of the range of prosecutors you now have to provide some kind of wellness service. wheather it be nutrition,reiki,acupuncture, counseling, they dont define what it is you have to do. But they do define that if you dont do something extra you could be prosecuted. Sooo that leaves us with alot of fear and questions. Best advice if you find your self in the caregiver position with out a wellness plan is to call one of these attorneys and see what your options are. my .02...hope this helps.

 

[qatsi]

This issue is already being discussed here: http://www.icmag.com/ic/showthread.php?t=136336&page=8

Sorry, my bad. I looked around but didn't see.

 

[HossCartwright]

I have gout. I'm going to call my foot and ankle doc on Monday and tell him the meds aren't enough and that I require some acupuncture, a few massages, and a ride to the grocery store.

This is absolute crazy talk. F#%K the DEA, CO AG, CO Appellate and the Boulder DA. They are all a bunch of A$$ clowns!

 

[Spacecadet01]

I have gout. I'm going to call my foot and ankle doc on Monday and tell him the meds aren't enough and that I require some acupuncture, a few massages, and a ride to the grocery store.

This is absolute crazy talk. F#%K the DEA, CO AG, CO Appellate and the Boulder DA. They are all a bunch of A$$ clowns!

LOL...i know. The reason they dont see it that way is because they still see MMJ as a illegal drug..not a medicine. Its probably gonna take a complete changing of the guard at the state and fed level for them to open there eyes. If some of representatives where to loose there jobs because "we the people" voted for pro mmj candidates then you would see alot of them change there tune to save there ass. Hopefully this will be seattled by the legislature in January with a common sense solution. But until then keep your heads low...and follow the law as best u can.

 

[cobcoop]

LOL...i know. The reason they dont see it that way is because they still see MMJ as a illegal drug..not a medicine. Its probably gonna take a complete changing of the guard at the state and fed level for them to open there eyes. If some of representatives where to loose there jobs because "we the people" voted for pro mmj candidates then you would see alot of them change there tune to save there ass. Hopefully this will be seattled by the legislature in January with a common sense solution. But until then keep your heads low...and follow the law as best u can.

I agree, and the whole wellness service arrangement is very odd and hypocritical, as others have pointed out. It would appear to me that the intent of the law was to provide marijuana to those in medical need, and the intended purpose of a caregiver within the framework of the constitutional amendment is to provide marijuana safely to patients. BUT I can see how the judges were led to their decision (not that I agree with it) based on the language of the law;

a person, other than the patient and the patient’s physician, who is eighteen years of age or older and has significant responsibility for managing the well-being of a patient who has a debilitating medical condition.

What is a significant responsibility? If it had said something like 'a person who can safely provide marijuana to the patient' then we'd be better off.

 

[Bobby Stainless]

So if you were to go and set up a "Wellness Center" and had consultations with your patients, as well as email/phone support, then you would have "significant responsibility"?

 

[Surrender]

Wouldn't any patient agree that providing their medicine is a significant responsibility in the management of their well being? The stuff doesn't grow itself.

 

[Spacecadet01]

So if you were to go and set up a "Wellness Center" and had consultations with your patients, as well as email/phone support, then you would have "significant responsibility"?

pretty much right on with that point. they are just tryin to slow or stop anyone from opening a shop on any corner. they are making it more work and responsibility to discourage any get rich quick people. but in turn they throw a wrench in the whole program..ive it some time though..there are peeps workin out solutions.

 

[rmccinc719]

i brought this over from my thread because i thought it fit better over hear. if I'm correct this should hopefully protect us and maybe used as a model for other biusnesses to follow.

spacecadet01 after reading about this ruling i called my contractor to to discuss this issue. my contractor has already instituted a program that sends out weekly news letters and updates to patients and requires monthly visits to recieve meds and counseling services if needed. they also have a full time doc on staff as they are a wellness center and not a dispensery. as a contractor for the wellness center and considered a employee i now can go forth with contacting all my patience and introduce myself as said contractor/employee without violating hipa laws. and therefore i will know all my patience. and there conditions. we will make monthly appointments with our patience to discuss there medical management. hopefully that will cover us.

 

[Spacecadet01]

i brought this over from my thread because i thought it fit better over hear. if I'm correct this should hopefully protect us and maybe used as a model for other biusnesses to follow.

spacecadet01 after reading about this ruling i called my contractor to to discuss this issue. my contractor has already instituted a program that sends out weekly news letters and updates to patients and requires monthly visits to recieve meds and counseling services if needed. they also have a full time doc on staff as they are a wellness center and not a dispensery. as a contractor for the wellness center and considered a employee i now can go forth with contacting all my patience and introduce myself as said contractor/employee without violating hipa laws. and therefore i will know all my patience. and there conditions. we will make monthly appointments with our patience to discuss there medical management. hopefully that will cover us.

dude sounds good...Id make sure you document all your moves as much as possible. Also call Warren or another lawyer spend the $150 for a consultation and make sure that idea flys. Otrher than that your doin what you can in the face of all this. Be safe and good luck on your endevour!

 

[Bobby Stainless]

Can a "Wellness Center" supply itself?

 

[Pythagllio]

Gosh whoever wrote DC's Initiative 59 had some good foresight. I don't really like the definitions in the Initiative, but at least it spells out how dispensaries can be set up and who can do it.

 

[HossCartwright]

What is a significant responsibility? If it had said something like 'a person who can safely provide marijuana to the patient' then we'd be better off.

I agree, that is worded horribly. Didn't they JUST change that definition recently though? I seem to remember the definition of caregiver being more vague previously.

 

[oldbob]

When does this go into effect. In common language what are they saying would be compliance. How would this affect prices??

 

[Spacecadet01]

In effect as we speak...i dont know about prices?...might be less places to buy herb..since some dispensaires will have to shut down or convert to wellness centers. we'll just have to wait and see how the next month shakes out to see the real impact. I wouldnt be suprised if the DA's make examples of some to put the word out that this ruling is in effect. if your worried about your OP get legal advice and keep head low.