[420 Girl]

HELENA - A number of people Wednesday criticized a state Corrections Department proposal to prohibit anyone on parole or probation from obtaining medical marijuana as a prescription drug, despite a state law that allows it.

"This proposed rule is illegal," Tom Daubert of Patients and Families United, a medical marijuana advocacy group, told a hearings officer. "It completely defies Montana's medical-marijuana law."

Daubert helped lead the 2004 campaign for the ballot initiative, which 62 percent of Montanans approved, that legalized the use of medical marijuana prescribed by physicians. He said 600 to 700 Montanans overall have received such prescriptions from about 150 physicians.

"These are decisions up to patients and the doctors and perhaps God," but not a Corrections Department probation officer, he said.

Daubert said the members of the group are "a little irritated" and "dumbfounded" that a state agency is ignoring the law.

Scott Day, a terminally ill Dillon resident who suffers from a rare degenerative disease, said, "We need it for people on probation. It's vitally necessary for someone to get their medication."

"I can't imagine how a probation officer should have control over medicine," he said. "It's a doctor's decision."

Day was busted last month for having 96 marijuana plants in a mobile home north of Dillon, but he has not been charged. Law enforcement agents estimated the street value of the marijuana plants at up to $153,000.

Without medical marijuana, Day's life "wouldn't be worth living," Daubert said. Daubert told the Montana Standard last month that if Day were taken into custody, it would cost taxpayers $136,000 a month to keep him alive.

Eric Billings of Lewistown said he was diagnosed with AIDS in 1990 and given six months to live. He said he now takes prescribed medical marijuana and only six pills a day instead of the previous 36 pills, saving $30,000 a month.

"Your rule dooms patients to pain and avoidable suffering," he said, vowing that advocates would challenge the rule in court if the Corrections Department adopts it.

David Michaud of Missoula, who's on probation from Colorado, said he has four prescriptions for medical marijuana signed by three physicians. Yet his probation officer determined "in one second" that he couldn't fill the prescriptions, he said.

Pam Bunke, administrator of the Adult Community Corrections Division for the Corrections Department, defended the proposed rule. She said people on parole and probation are subject to certain restrictions because they have broken the law.

"They do not share all the freedoms that other citizens enjoy," Bunke said.

If medical marijuana is added to the list of prohibited items, people on parole and probation can apply for an exemption if it's prescribed by a doctor, she said.

Applications by people on parole and probation to use prescribed medical marijuana should be reviewed on a case-by-case basis, she said, based on their medical condition and whether they are at risk of becoming addicted to it.

Critics, however, said the rule doesn't contain language allowing for an exemption.

Corrections Department spokesman Bob Anez said later that it's standard procedure that a parolee or probationer can go before a judge and seek a waiver from the rules.

Daubert said that would force parolees to hire an attorney to appear before a judge to seek a waiver. Parolees are no longer entitled to the use of a public defender, he said.

Endorsing the rule was Lewis and Clark County Attorney Leo Gallagher, representing the Montana County Attorneys' Association. He expressed concern about the possibility of "addictive and illegal drugs" being prescribed to people on parole and probation.

Ron Alsbury, chief of the Parole and Probation Division at the Corrections Department, said the U.S. Justice Department told him that possession of marijuana is a federal crime.

"I can't direct our staff to advise offenders to put themselves in a position where they might be indicted for a federal crime," he said.

The Corrections Department will decide in the coming months whether to adopt the rule.

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