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From: "Carl E. Olsen" 
Subject: Court Order of January 24, 1997
              
              
              
              IN THE IOWA DISTRICT COURT FOR BLACK HAWK COUNTY
STATE OF IOWA,                    )
                                  )
               Plaintiff,         )
                                  )           NO. FECR047575
     vs.                          )
                                  )                ORDER
ALLEN DOUGLAS HELMERS,            )
                                  )
               Defendant.         )
                                  )
     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
cc:   counsel
      DCS
      Violator's Program
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*  Carl E. Olsen                *  carl@commonlink.net                *
*  Post Office Box 4091         *  NORML News archived at:            *
*  Des Moines, Iowa 50333       *  http://www.calyx.com/~olsen/       *
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