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IN THE IOWA DISTRICT COURT FOR BLACK HAWK COUNTY

STATE OF IOWA,               )
                             )
               Plaintiff,    )
                             )     NO. FECR047575
     vs.                     )
                             )          ORDER
ALLEN DOUGLAS HELMERS,       )
                             )
               Defendant.    )

     Defendant's final revocation hearing resumed on July 14, 1997.  The state appeared by its assistant county attorney and the defendant appeared in person and by his attorney.

     The state presented the Court with a letter from the correctional release center in response to the Court's order of January 27, which required the state to present the Court with the plan of medical treatment proposed by the Department of Corrections to treat defendant's pain as well as he has been managing the pain himself.  The letter is completely unresponsive to the Court's request because it is directed solely to defendant's admitted drug dependence, rather than his pain management for which no treatment is identified.  We know the defendant is drug dependent, the issue is whether his medical situation can be managod without it.

     Under Iowa law, physicians registered to dispense controlled substances may prescribe marijuana for medicinal purposes because the Iowa Legislature has found that although it has a high potential for abuse which may lead to dependence, it has currently accepted medical use in treatment in the United States or currently accepted medical usc with severe restrictions.  The board of pharmacy examiners has had several opportunities to recommend a revision in the schedule which permits the prescription of marijuana since the federal government changed its classification but either the board has not done so or the legislature has not adopted the board's recommendation.  See Sections 124.102(3),(9),(17),(23); 124.201(1),(2),(4); 124.205(1),(2),(3); 124.206(1),(7)(a); 124.302(3)(c) and 124.308(1) (The Code 1997).

     Both defendant's treating physician and consulting physician have stated on the record that but for their fear of prosecution under federal law, they would prescribe marijuana for defendant's condition to assist him in managing his pain.  Regardless of one's opinions about the use or misuse of marijuana, it is the Court's view if any level of government is going to regulate the physician-patient relationship, it is best done at the state, rather than at the federal level.

     This is not to say that the State cannot prosecute the defendant for violation of Iowa's drug laws or that a conviction will not lead to a revocation of his probation.  The Court is only saying that defendant's probation should not be adversely affected for want of a medical prescription which he could legally obtain in Iowa but for the threat of federal prosecution faced by his physician.  Moreover, if the general assembly reclassifies marijuana as a Schedule I controlled substance, the Court would have no problem finding a violation and imposing an appropriate remedy.

     Under these circumstances, however, the Court is not disposed to interfere with defendant's probation simply because of the federal government's interference with Iowa's regulation of controlled substances.

     IT IS THEREFORE ORDERED:

     1.   Defendant shall continue on supervised probation in the discretion of the Department of Correctional Services.

     2.   This record shall remain open until such time as the conflict between state and federal law regarding accepted medical uses of marijuana is resolved or until the state comes forward with a detailed plan of medical intervention by which the state contends that defendant's pain can be effectively and reasonably managed without the use of marijuana, whichever occurs first.

     3.   If neither of the above-events occurs before defendant's discharge from probation, there will be no further hearing and the complaint of violation dismissed.

     4.   Until further order, the Department of Corrections is relieved from enforcing that part of paragraph 6 of Defendant's condition of probation which states that he "will not use or possess any illegal drugs or any prescription drugs without a valid prescription" with regard to any controlled substance which is a Schedule II controlled substance under Iowa law and a Schedule I controlled substance under federal law.

     5.   This order does not in any way enjoin the state from prosecuting defendant for the alleged commission of drug related offenses.

     July 14, 1997.

     JON FISTER, JUDGE
     FIRST JUDICIAL DISTRICT

cc:  counsel
     DCS