High court turns down man's medical marijuana appeal

February 11, 2005

Jeff Reinitz, WCF Courier (Iowa)

DES MOINES --- Two justices on Iowa's high court said people should be able to argue they have a medical need for marijuana to defend against criminal drug charges. But the majority of Iowa Supreme Court justices disagreed in a case concerning Lloyd Dean Bonjour, a Floyd County AIDS patient.

They upheld Bonjour's conviction for manufacturing marijuana.

Justice David Wiggins issued a dissenting opinion, which was backed by Chief Justice Louis Lavorato, stating Bonjour, 64, should have been able to use a "medical necessity" defense when his case went to trial in 2002.

Iowa law classifies marijuana as a Schedule I substance, which means it has a high potential for abuse and no recognized medical use.

Another section of the law allows the drugs to be considered a Schedule II substance, which denotes it has accepted but restricted medical uses, "provided by rules of the board of pharmacy examiners."

But the Iowa pharmacy hasn't developed rules concerning the drug's medical use, so it remains an illegal Schedule I substance.

"These are issues the court and the legislature needs to take a look at," said Theresa Wilson, the assistant state appellate defender who handled Bonjour's appeal.

She was disappointed by the ruling but happy to see the dissenting opinion. She is mulling the possibility of asking for a rehearing on the case.

Wiggins' dissenting opinion cited a previous case that allowed a farmer to defend against criminal charges involving the shooting of a deer by arguing he killed nuisance deer damaging crops.

"If we are willing to allow a farmer to realize the full value of his crops by allowing him to kill a foraging deer, ... we should allow an individual to seek relief from the agonizing symptoms caused by an incurable disease that will eventually lead to death, even though the board of pharmacy examiners had not enacted rules regarding the medical use of marijuana," the dissenting opinion states.

Bonjour was arrested after Floyd County sheriff's deputies found marijuana plants and bagged marijuana in his home in 2000.

He tried to argue that the illegal drug was a medical necessity, and during a pre-trial hearing he called Dr. Jeffery Meier, an assistant processor of internal medicine at the University of Iowa.

Meier had treated Bonjour and testified the pot counteracts the poor appetite, nausea and other side effects of the toxic medications his patient takes for AIDS.

The physician said he first tried treating Bonjour with Marinol, which is a synthetic version of marijuana's THC. But Bonjour told him the symptoms were better controlled with real marijuana.

"One could say that marijuana might have been lifesaving in this particular case," Meier testified.

The district court didn't allow Bonjour to present any of this evidence during a bench trial, and Bonjour was convicted of manufacturing marijuana.

Bonjour appealed the matter to the Iowa Supreme Court.

The majority of the Supreme Court agreed with the district court that Bonjour shouldn't have been allowed to use a medical necessity defense.

It noted the deer-shooting case but said the use of marijuana was a different legal issue, noting the Legislature deferred the decision on the marijuana matter to the pharmacy board.

"Use of marijuana is a public-policy issue best suited for the Legislature because it is driven by legal, moral, philosophical and medical concerns that are ill-suited for resolution by this court," the ruling reads.

Jeff Reinitz can be contacted at (319) 291-1578 or jeff.reinitz@wcfcourier.com.

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