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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.    )
          No oral argument having been requested, the State's motion to
     reconsider was considered by the Court on August 13, 1997.
     Defendant's alleged probation violation is not that he possessed
     or was trafficking in marijuana, which are criminal offenses, but
     that he was using marijuana without a prescription, which is not a
     criminal offense although it is contrary to one of the terms of
     Defendant's probation.  Defendant's treating and consulting
     physicians have previously testified that they would give him a
     prescription but for threats of prosecution under federal law.
          Nonetheless, the Court would have revoked or modified
     defendant's probation if the assistant county attorney had
     introduced any medical testimony at all that, given defendant's
     allergy to morphine, the chronic pain associated with his
     fibromyalgia and other ailments could be effectively managed
     without marijuana were he to be placed in treatment for his drug
     dependency.  The Court would also have revoked or modified
     defendant's probation if the Iowa Code did not provide that
     marijuana can be prescribed for medicinal purposes as long as its
     use is in compliance with any rules adopted by the state board of
     pharmacy examiners.
          Because there was no medical testimony to support the
     contention that defendant's chronic pain can be managed without
     the use of marijuana and because the assistant county attorney
     previously admitted that marijuana can be prescribed for medicinal
     purposes under Iowa law, the Court ruled that defendant would
     continue on supervised probation until the conflict between
     federal law, which does not permit the prescription of marijuana
     for medicinal purposes, and Iowa law, which does, is resolved.
          Now, for the first time, the assistant county attorney claims
     that marijuana should be treated solely as a Schedule I
     nonprescription drug under Iowa law because of actions or
     inactions allegedly taken or not taken by the state board of
     pharmacy examiners.
          This motion could be summarily denied simply because the
     factual allegations are not supported by affidavit as contemplated
     by Rule of Civil Procedure 116 and because motions to reconsider
     are permitted so that Courts may enlarge or modify findings based
     on evidence already in the record.  They are not vehicles for
     parties to retry issues based on new facts.  The assistant county
     attorney has had two opportunities to offer testimony in support
     of these new allegations.  He merely failed to take advantage of
     those opportunities.  See In Re Marriage of Bolick, 539 N.W.2d
     357, 361 (Iowa 1995).  In any event, the Court is no more able to
     rely on unproven claims concerning the action or inaction of the
     board of pharmacy examiners than on the unproven claim that there
     is an alternative course of effective pain management for
     defendant.
          Having said that much, the State's motion to reconsider would
     fail even if its allegations were supported by evidence already in
     the record.  In 1970, Congress enacted the Controlled Substances
     Act (CSA), a comprehensive statute designed to rationalize federal
     control of dangerous drugs.  In drafting the CSA, congress placed
     marijuana in Schedule I, the classification that provides for the
     most severe controls and penalties.  The act provides that the
     Attorney General may, by rule, add a substance to a schedule,
     transfer it between schedules, or decontrol it by removal from the
     schedules.  The act further provides that rescheduling proceedings
     may be initiated by the Attorney General on his or her own motion,
     at the request of the Secretary of Health, Education and Welfare,
     or on petition of any interested party.  The Attorney General has
     delegated the authority to reschedule drugs to the administrator
     of the Drug Enforcement Administration.  Under federal law,
     marijuana has always been a Schedule I drug.  Schedule I and
     Schedule II drugs differ because Schedule I drugs have no
     currently accepted medical use in treatment in the United States
     while Schedule II drugs have a currently accepted medical use in
     treatment in the United States.  See 21 U.S.C. 811, 812; Nat.
     Organization for Reform, Etc. v Drug Enforcement, 559 F.2d 735,
     737-738 (1977); Alliance for Cannabis Therapeutics v DEA, 15 F.3d
     1131, 1133,(D.C.Cir. 1994).
          Around 1971, Iowa adopted the Uniform Controlled Substances
     Act, which is now Iowa Code Chapter 124.  Until about 1980,
     marijuana was a Schedule I controlled substance.  However, by
     amendments to the 1981 Code of Iowa, the general assembly created
     an exception for marijuana when used for medicinal purposes
     pursuant to rules of the board of pharmacy examiners and added it
     to Schedule II.  See Section 204.204(4)j (The Code 1979); Sections
     204.204(4)j, 204.204(6) and 204.206(8) (The Code 1981); and
     Sections 124.204(4)m, 124.204(7) and 124.206(7)a (The Code 1997).
     Sections 124.201(1) and 124.201(2) (The Code l997) require the
     board of pharmacy examiners to recommend any deletions from or
     revisions in the schedules of substances which the board deems
     necessary or advisable to the general assembly.
          What all of this means is that, if the board of pharmacy
     examiners really concludes marijuana to have no medicinal value,
     as alleged by the assistant county attorney, the board has an
     unqualified duty to recommend that the general assembly delete it
     from Schedule II and revise Schedule I so that it is not excluded
     even when utilized for medicinal purposes.  See Sections 124.203,
     124.205, (The Code 1997).
          The assistant county attorney's motion also includes a claim
     that marijuana cannot be prescribed in Iowa because the board of
     pharmacy examiners has failed to adopt any rules to regulate its
     use for medicinal purposes.  The first flaw in this argument is
     that it depends on the novel proposition that a state agency, such
     as the board of pharmacy examiners, can do an end run around the
     general assembly and the governor and amend the Code of Iowa by
     its own action or inaction.  The Court does not share this view
     and doubts that it is widely held.  The second flaw in this
     argument is that nothing prevents the board from adopting any
     rules it deems appropriate.  If there are no marijuana specific
     rules, it may be assumed that the board sees no need to regulate
     the medicinal use of marijuana any more than any other Schedule II
     controlled substance.  The board has adopted rules governing the
     prescription of Schedule II substances in 657 I.A.C. 10.11 and 657
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