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* Originally from carl@commonlink.net.
* Original dated: Sat Jul 19, 07:57
http://www.commonlink.com/~olsen/MEDICAL/HELMERS/order3.html
              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 managed 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
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