by Howard Mintz, Mercury News, February 8th, 2007 -- The California Supreme Court agreed Wednesday to consider whether being a primary caregiver can be a defense against criminal charges of cultivating marijuana under the state's 1996 medical marijuana law.

In a case out of Santa Cruz, the justices voted to review a decision in October by the San Jose-based 6th District Court of Appeal, which found that a jury should have been allowed to hear the defense in the 2005 trial of a medical marijuana advocate. The 6th District overturned the conviction of Roger Mentch for cultivating marijuana and possession of marijuana for sale because a trial judge excluded the defense.

The case will be the latest in a string of rulings from the state Supreme Court that have defined the boundaries of Proposition 215, which legalized the use of marijuana for certain medical conditions. Federal law still bans any use or distribution of marijuana.

Mentch ran the Hemporium, a care-giving service and marijuana collective in Felton, when his legal troubles began in 2003. The issue before the Supreme Court is whether he -- and others in his position across the state -- can argue that a primary caregiver who supplies marijuana to medical clients should not be prosecuted on drug cultivation and possession charges.