DOCTORS PROTECTED IN POT RULING

Government Barred From Investigation

SAN FRANCISCO -- A federal judge on Thursday permanently barred the federal
government from investigating or revoking the prescription licenses of
California doctors who, acting on their "sincere medical judgments,"
recommend marijuana to seriously ill patients.

"Patients need to know their doctors' recommendations," said U.S. District
Judge William Alsup.

His ruling, noting that pot "is recognized as legitimate in medically
appropriate circumstances" in California and seven other states, came a
week after the U.S. Supreme Court stayed an order that had opened the door
to legal pot distribution in Oakland. Whether the high court will take up
the Oakland case probably will be decided in the next few weeks.

While the two post-Proposition 215 cases are unrelated, both affect the
enforceability of the 1996 medical marijuana initiative in face of
opposition by the Clinton administration.

A spokeswoman for the U.S. Department of Justice said Alsup's ruling will
be reviewed by government lawyers to decide whether it, too, will be
appealed to a higher court.

The order could give a substantial boost to Proposition 215 by lifting the
threat of federal sanctions against doctors who want to recommend marijuana
for treatment of cancer, AIDS and certain other serious diseases. A
doctor's recommendation is required under Proposition 215.

"The severity of the government threat has cast a chill (on conversations
between doctors and patients) that's been persistent for several years,"
said Graham Boyd, the lead lawyer in the class action suit. "My hope is
this decision will leave physicians and patients to once again feel free to
discuss marijuana as a medical option."

Alsup broadened and made permanent a preliminary injunction issued about
three years ago.

The 1997 ruling by U.S. District Judge Fern Smith of San Francisco said
doctors could recommend marijuana but left the threat of sanctions.

Smith said the U.S. Drug Enforcement Agency could go after the licenses of
those who intended their recommendations to be used to procure the drug,
which is illegal under federal law.

Alsup ruled that "a sincere recommendation alone is not a federal crime,
even if the doctor foresees it could be used to facilitate a federal crime."

He also clarified -- though Smith did not -- that doctors may give patients
written verification of their recommendations.

The only doctors subject to DEA license revocation under Alsup's ruling are
those who issue "insincere recommendations without a medical basis and with
knowledge that they would be used to illegally obtain marijuana."

Alsup refused to rule on whether doctors who prescribe pot can be
prosecuted by federal authorities or kicked out of the federal Medicare and
Medicaid programs.

Government threats to pursue those sanctions weren't credible enough to
warrant a court's decision, he said.

He did, however, cite the DEA's interview of a Pollock Pines physician as
proof that the threat of license revocation was real.

According to Alsup, Dr. Robert Mastroianni was interviewed in January 1997
by a DEA agent who showed him a copy of a marijuana recommendation that he
alleged the doctor had written.

The agent asked about Mastroianni's medical practices and familiarity with
research on the medical efficacy of marijuana and asked to review his
prescription records at a local pharmacy, Alsup said.