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Judge says conflicting laws give man an out

Courier Staff Writer


    The failure of the Iowa Board of Pharmacy Examiners to recommend standards regarding the use of marijuana for medical use has hindered attempts to revoke the probation of a Waterloo man for using marijuana.
    Citing a discrepency between state and federal law, a Black Hawk County district court judge has reaffirmed his earlier decision not to revoke the probation of a man who tested positive for using marijuana while on probation.
    The judge's ruling states that if the Board of Pharmacy Examiners believes smoking marijuana has no medicinal value, it has an "unqualified duty" to recommend the Legislature delete it from schedule II classification, which recognizes drugs with medicinal value.
    The board's executive director, Lloyd Jessen, said the ruling is a "unique interpretation."
    "That's the first time we've been made aware by any judge that there's a problem," he said.

State, federal conflict
    Under Iowa law, marijuana is considered both a schedule I and schedule II drug.  Classification as a schedule II drug means it has medicinal value and falls under the jurisdiction of the Iowa Board of Pharmacy Examiners, which must regulate its prescription and use.
    The board is responsible for reporting new information about drugs and recommending actions to the Legislature.
    Jessen said the board was under the impression that federal law classifying marijuana as a schedule I drug, and prohibiting doctors from prescribing it, precludes the board from regulating it or taking any action on the issue.
    "Even if we wanted to we couldn't," Jessen said, referring to the federal law.
    The board has no rules providing for the use of marijuana for medical treatment, just its derivative drug, dronabinol, which is available for physicians to prescribe.
    Allen Helmers, 49, of Waterloo, says smoking marijuana is the best treatment available for treating fibromyalgia, which keeps him in constant pain.  He said marijuana helps reduce pain from a broken back suffered in an auto accident.
    Helmers is allergic to other drugs, such as morphine, that would be effective in relieving pain.
    Helmers was placed on probation in 1995 after a conviction for possession of marijuana with the intent to deliver and failure to have a drug tax stamp.   Prosecutors sought to have his probation revoked after Helmers tested positive for marijuana in 1995, violating the terms of his probation.

Unique ruling
    But District Court Judge Jon Fister ruled against Helmer's probation being revoked, noting a discrepency between state law, which recognizes medical uses for marijuana, and federal law, which deems marijuana has no medicinal purpose and can't be prescribed.
    The ruling said Helmers is not exempt from future prosecution under controlled substance laws.
    Fister's ruling said that he won't review the matter until the Legislature or the Board of Pharmacy Examiners formally changes or clarifies the stance on the use of marijuana for medical purposes, and that stance is reflected in the Iowa Code.
Jessen said the board has no intention of adopting rules allowing for the prescription of marijuana, noting the issue is hotly debated in the medical field.
    He said the board will review Fister's decision and seek advice from the Iowa attorney general on the issue.

Wednesday, September 10, 1997

The Waterloo / Cedar Falls Courier
Post Office Box 540
Waterloo, Iowa 50704
319-291-1400 voice
319-291-2069 fax

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