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IN THE IOWA DISTRICT COURT FOR BLACK HAWK COUNTY

        A final revocation hearing was held on January 23, 1997.  The State appeared by its assistant county attorney and the defendant appeared in person and by his attorney.

        On August 4, 1995, defendant was sentenced to serve two five-year prison terms concurrently for possession with intent to deliver marijuana and failure to affix a drug tax stamp.  The sentences were suspended and defendant was placed on probation pending good behavior.

        On July 11, 1996, a report of violation was filed stating that defendant had violated rule 6 of the terms and conditions of his probation.  Rule 6 requires the defendant to obtain a valid prescription from a physician for any drugs, legal or illegal, used by him.  The report states that defendant has admitted using marijuana on numerous occasions and has tested positive for marijuana.  Marijuana is a Schedule II controlled substance under the Iowa Code and a Schedule I controlled substance under federal law.  Under federal law, physicians may not prescribe marijuana for defendant's claimed use, which is pain management.

        Defendant contends that any violation should be ignored because he suffers from a condition involving substantial physical pain which he has been unable to manage or control except by smoking marijuana and he has been unable to find any feasible medical alternative.  Defendant also contends that his medical needs dictate that he not be held in contempt or revoked for violating this particular term of his probation because it is a term with which he cannot reasonably comply.  Defendant's probation officer acknowledges that but for his illegal drug use, defendant is a model probationer.

        Defendant has yet to find a physician able to prescribe an alternate course of treatment which would provide pain relief even roughly equivalent to that which he claims to attain from self-medication through marijuana.  The State contends that feasible and effective pain management alternatives exist and can be provided to defendant by or through the violator's program.  Defendant has no objection to another method of pain management if it permits him to control his pain as well as he does by smoking marijuana.

        The Court finds that defendant has violated rule 6 of the terms and conditions of his probation.  The Court further finds that the Department of Correctional Service either lacks authority to impose terms of probation with which a probationer cannot reasonably comply, or, in the alternative, should evaluate a probationer's compliance with the terms imposed in light of that person's ability to comply, the reasonable efforts the person has made to comply, and the extent to which the person's noncompliance is inconsistent with the person's rehabilitation, i.e., distinguishes the probationer's behavior from the behavior of a normal, ordinary, responsible person in the same circumstances.

        IT IS THEREFORE ORDERED:

        1.  Defendant's probation is not revoked but defendant shall be admitted to the violator's program as soon as space is available.

        2.  Within two weeks after his admission to the violator's program, his counselor or other responsible person shall provide the Court with a detailed statement setting out the medical intervention by which the State contends that defendant's pain can be effectively and reasonably managed without the use of marijuana or shall, in the alternative, acknowledge that the State is unable to propose any plan by which defendant's pain can be managed about as well as he has been managing it himself.  In latter case, the defendant shall be discharged from the violator's program, discharged from supervised probation and placed on unsupervised visitation.

        3.  In the event that the State claims that it can provide defendant with treatment which would effectively manage his pain without the use of marijuana with results substantially the same as defendant has been able to obtain from smoking marijuana, the State shall implement that treatment and provide a report to the Court within 30 days thereafter setting out in detail the extent to which the goals of defendant's pain management treatment have been achieved and stating whether that treatment should be continued, and if continued, with what expected results.  If the State is unable to show that the alternate treatment has been effective within reasonable tolerances of defendant's self-medication, or that, given further time, it is likely to be about as effective as defendant's self-medication, the defendant shall be discharged from the violator's program, discharged from supervised probation, and placed on unsupervised probation.

        4.  Upon admission to the violator's program, defendant shall provide its personnel with his medical records and appropriate medical releases so the health providers associated with the violator's program can obtain whatever medical information they may need from defendant's treating and consulting health providers and associated with the violator's program can provide relevant medical information to defendant's counselor and to the Court.

        January 24, 1997.

        _______________________
        JON FISTER, JUDGE:
        FIRST JUDICIAL DISTRICT