California Medical Marijuana Law: “Primary Caregivers”

Health and Safety Code 11362.5  is California’s Compassionate Use Act (“CUA”).  It is also referred to as “Prop. 215” or “SB 240.”

Although California legalized the use of recreational medical marijuana as of January 1, 2018, it did not replace the protections of California’s medical marijuana law.

Recreational users age 21 and over may legally possess up to one (1) ounce of weed or eight (8) grams of concentrated cannabis. They may also cultivate up to six (6) plants.

But legal users of medical marijuana are not necessarily subject to these restrictions. Additionally, people under 21 can legally use medical marijuana with a doctor’s recommendation and, if they are under 18, the consent of a parent.

The CUA, therefore, protects users of medical marijuana and their primary caregivers against prosecution for:

• Possession of marijuana, Health and Safety Code 11357 HS¹
• Cultivation of marijuana, Health and Safety Code 11358 HS²
• Possession or production of concentrated cannabis³
• Transporting or giving away cannabis, Health and Safety Code 11360 HS⁴

You qualify as a primary caregiver under the CUA if:

1. the person you care for is legally entitled to use medical marijuana
2. you meet the legal definition of a primary giver under the CUA⁵

(In November of 2016, California voters passed Proposition 64, which legalized the use of recreational marijuana for people over 21 in California and authorized Californians to sell recreational marijuana under state-issued licenses. Over time, medical marijuana users in California may find it simpler to meet their medical marijuana needs through the legal recreational marijuana market. As of 2016, however, California’s medical marijuana laws continue to play an important role.)

Who may legally use medical marijuana in California?

California residents may legally use medical marijuana in California if:

1. It is recommended or approved by a California-licensed physician
2. It is for the treatment of a serious medical condition
3. It is used solely for their legitimate medical needs⁶

Serious medical conditions authorized under the CUA include:

• AIDS
• anorexia
• cancer
• chronic pain
• epilepsy
• migraines⁷

The legal definition of a primary caregiver under California marijuana law

You qualify as a primary caregiver under California marijuana law if:

1. You have been designated for that purpose by a legal medical marijuana user
2. You are consistently responsible for that person’s housing, health, and/or safety
3. The care you provide is independent of assistance you give the person in taking medical marijuana
4. You began taking care of the person at or before the time you assumed responsibility for assisting with medical marijuana⁸

What may medical marijuana primary caregivers legally do?

Under the CUA, primary caregivers for medical marijuana patients may:

• Possess medical marijuana on the behalf
• Give medical marijuana to the patient
• Transport reasonable quantities of marijuana for the patient’s medical use
• Cultivate marijuana and/or produce concentrated cannabis for the patient’s use⁹

How much marijuana may a primary caregiver possess and/or cultivate?

Primary caregivers may possess and/or cultivate an amount of marijuana reasonably related to the current medical needs of the patient.¹⁰

The following amounts are considered reasonable by law:

• Possession of up to eight ounces of dried marijuana
• Cultivation of six mature or 12 immature marijuana plants¹¹

If you are prosecuted for possessing and/or cultivating amounts in excess of this, you will need to prove that they were reasonable based on the patient’s current medical needs.

Do primary caregivers need a California medical marijuana card?

Patients and caregivers do NOT need a California medical marijuana ID card (“MMIC”) in order to gain the benefits of the CUA.

However, those with an MMIC cannot be arrested for possession, transportation, delivery, or cultivation of marijuana unless:

• an officer reasonably believes the information on the card is false or falsified
• the card has been obtained by means of fraud
• the person is otherwise in violation of marijuana laws (e.g., possession of more cannabis than meets the patient’s reasonable medical needs, possession with intent to sell, etc.)¹²

If you do not have an MMIC, and you are arrested for violating California marijuana laws, you may still raise the CUA as an affirmative defense to the charges.¹³

How do I obtain a primary caregiver medical marijuana ID card?

MMICs must be applied for in person at the health department of the county in which the patient lives.¹⁴ As of July 20014, they are available in every California county except Sutter and Colusa.

Only the patient can apply for a primary caregiver MMIC.  To obtain one, both you and the patient will need to go to the appropriate county health department.

For more information, see our article on How to Get a Medical Marijuana Card in California.

If you or a loved one has been arrested for a California crime involving marijuana:

Legal References:

¹ California Health and Safety Code 11357 HS:

(a) Except as authorized by law, every person who possesses any concentrated cannabis shall be punished by imprisonment in the county jail for a period of not more than one year or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment, or shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code.

(b) Except as authorized by law, every person who possesses not more than 28.5 grams of marijuana, other than concentrated cannabis, is guilty of an infraction punishable by a fine of not more than one hundred dollars ($100).

(c) Except as authorized by law, every person who possesses more than 28.5 grams of marijuana, other than concentrated cannabis, shall be punished by imprisonment in a county jail for a period of not more than six months or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment…

² California Health and Safety Code 11358 HS: Every person who plants, cultivates, harvests, dries, or processes any marijuana or any part thereof, except as otherwise provided by law, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code.

³ Concentrated cannabis (hashish) is the separated resin obtained from the marijuana plant. Under California Health and Safety Code 11018 HS, “marijuana” is defined as “all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin…”

See also Opinion of the Attorney General, 86 Ops. Cal. Atty. Gen. 180 (October 21, 2003) (“Concentrated cannabis or hashish is included within the meaning of ‘marijuana’ as that term is used in the Compassionate Use Act of 1996.”).

⁴ California Health and Safety Code 11360(a): Except as otherwise provided by this section or as authorized by law, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any marijuana shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for a period of two, three or four years.

⁵ California Health and Safety Code 11362.5(e): For the purposes of this section, “primary caregiver” means the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person.

⁶ California Health and Safety Code 11362.5(d): Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.

⁷ California Health and Safety Code 11362.7 defines a “serious medical condition” as:

1. Acquired immune deficiency syndrome (AIDS)
2. Anorexia
3. Arthritis
4. Cachexia [wasting syndrome]
5. Cancer
6. Chronic pain
7. Glaucoma
8. Migraine
9. Persistent muscle spasms, including, but not limited to, spasms associated with multiple sclerosis
10. Seizures, including, but not limited to, seizures associated with epilepsy
11. Severe nausea
12. Any other chronic or persistent medical symptom that either:
    • Substantially limits the ability of the person to conduct one or more major life activities as defined in the Americans with Disabilities Act of 1990 (Public Law 101-336), or
    • If not alleviated, may cause serious harm to the patient’s safety or physical or mental health

⁸ California Health and Safety Code 11362.5(e), endnote 5.

See also California Health and Safety Code 11362.7(d) “Primary caregiver” means the individual, designated by a qualified patient or by a person with an identification card, who has consistently assumed responsibility for the housing, health, or safety of that patient or person…

See also People v. Mentch (2008) 45 Cal.4th 274 (“[A] defendant asserting primary caregiver status must prove at a minimum that he or she (1) consistently provided caregiving, (2) independent of any assistance in taking medical marijuana, (3) at or before the time he or she assumed responsibility for assisting with medical marijuana.”).

⁹ California Health and Safety Code 11362.765:

(a) Subject to the requirements of this article, the individuals specified in subdivision (b) shall not be subject, on that sole basis, to criminal liability under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570. However, nothing in this section shall authorize the individual to smoke or otherwise consume marijuana unless otherwise authorized by this article, nor shall anything in this section authorize any individual or group to cultivate or distribute marijuana for profit.

(b) Subdivision (a) shall apply to all of the following:

…(2) A designated primary caregiver who transports, processes, administers, delivers, or gives away marijuana for medical purposes, in amounts not exceeding those established in subdivision (a) of Section 11362.77, only to the qualified patient of the primary caregiver, or to the person with an identification card who has designated the individual as a primary caregiver…

¹⁰ People v. Kelly (2010) 47 Cal.4th 1008, 222 P.3d 186.

¹¹ California Health and Safety Code 11362.77(a): A qualified patient or primary caregiver may possess no more than eight ounces of dried marijuana per qualified patient. In addition, a qualified patient or primary caregiver may also maintain no more than six mature or 12 immature marijuana plants per qualified patient.

But see People v. Kelly, endnote 11 (holding that a primary caregiver may assert, as a defense in court, that he or she possessed or cultivated an amount of marijuana reasonably related to meet [the patient’s] current medical needs, without reference to the specific quantitative limitations specified by the MMP.).

See also People v. Trippet (1997) 56 Cal.App.4th 1532, 66 Cal.Rptr.2d  (“[P]ractical realities dictate that there be some leeway in applying section 11360 in cases where a Proposition 215 defense is asserted to companion charges… The test should be whether the quantity transported and the method, timing and distance of the transportation are reasonably related to the patient’s current medical needs. If so, we conclude there should and can be an implied defense to a section 11360 charge; otherwise, there is not.”).

¹² California Health and Safety Code 11362.71(e). No person or designated primary caregiver in possession of a valid identification card shall be subject to arrest for possession, transportation, delivery, or cultivation of medical marijuana in an amount established pursuant to this article, unless there is reasonable cause to believe that the information contained in the card is false or falsified, the card has been obtained by means of fraud, or the person is otherwise in violation of the provisions of this article.

¹³ People v. Kelly, endnote 10.

¹⁴ Contact the county for further information if the patient is unable to do so.