Judge says conflicting laws give man an out

+ Split on medical use of marijuana leaves Waterloo man free on probation.

By CHARLOTTE EBY
Courier Staff Writer

WATERLOO

The failure of the Iowa Board of Pharmacy Examiners to recommend standards
regarding the use of marijuana for medical use has hindered attempts to
revoke the probation of a Waterloo man for using marijuana. Citing a
discrepency between state and federal law, a Black Hawk County district
court judge has reaffirmed his earlier decision not to revoke the probation
of a man who tested positive for using marijuana while on probation. The
judge's ruling states that if the Board of Pharmacy Examiners believes
smoking marijuana has no medicinal value, it has an "unqualified duty" to
recommend the Legislature delete it from schedule II classification, which
recognizes drugs with medicinal value. The board's executive director,
Lloyd Jessen, said the ruling is a "unique interpretation." "That's the
first time we've been made aware by any judge that there's a problem," he
said.

State, federal conflict Under Iowa law, marijuana is considered both a
schedule I and schedule II drug. Classification as a schedule II drug means
it has medicinal value and falls under the jurisdiction of the Iowa Board
of Pharmacy Examiners, which must regulate its prescription and use. The
board is responsible for reporting new information about drugs and
recommending actions to the Legislature. Jessen said the board was under
the impression that federal law classifying marijuana as a schedule I drug,
and prohibiting doctors from prescribing it, precludes the board from
regulating it or taking any action on the issue. "Even if we wanted to we
couldn't," Jessen said, referring to the federal law. The board has no
rules providing for the use of marijuana for medical treatment, just its
derivative drug, dronabinol, which is available for physicians to prescribe.

Allen Helmers, 49, of Waterloo, says smoking marijuana is the best
treatment available for treating fibromyalgia, which keeps him in constant
pain. He said marijuana helps reduce pain from a broken back suffered in an
auto accident. Helmers is allergic to other drugs, such as morphine, that
would be effective in relieving pain. Helmers was placed on probation in
1995 after a conviction for possession of marijuana with the intent to
deliver and failure to have a drug tax stamp. Prosecutors sought to have
his probation revoked after Helmers tested positive for marijuana in 1995,
violating the terms of his probation.

Unique ruling But District Court Judge Jon Fister ruled against Helmer's
probation being revoked, noting a discrepency between state law, which
recognizes medical uses for marijuana, and federal law, which deems
marijuana has no medicinal purpose and can't be prescribed. The ruling said
Helmers is not exempt from future prosecution under controlled substance
laws. Fister's ruling said that he won't review the matter until the
Legislature or the Board of Pharmacy Examiners formally changes or
clarifies the stance on the use of marijuana for medical purposes, and that
stance is reflected in the Iowa Code. Jessen said the board has no
intention of adopting rules allowing for the prescription of marijuana,
noting the issue is hotly debated in the medical field. He said the board
will review Fister's decision and seek advice from the Iowa attorney
general on the issue.