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