DOCTORS CAN ADVISE ON POT : STATE PHYSICIANS MAY RECOMMEND MEDICAL MARIJUANA, NOT HELP PATIENTS GET IT, JUDGE SAYS.

Byline: Daily News Staff and Wire Services

California doctors can recommend marijuana to their patients without punishment as long as they don't help patients buy or grow the drug, a federal judge ruled Wednesday.

Calling the Clinton administration's policy on medical marijuana vague and contradictory, U.S. District Judge Fern Smith said the federal government has no right to stop doctors from recommending marijuana to treat certain diseases, even though the treatment may be illegal.

``The government's fear that frank dialogue between physicians and patients about medical marijuana might foster drug use . . . does not justify infringing First Amendment freedoms,'' Smith wrote.

``The First Amendment allows physicians to discuss and advocate medical marijuana, even though use of marijuana itself is illegal.''

Some proponents of medical marijuana said the ruling falls short and leaves patients with little alternative but to seek their medication from illegal drug pushers.

``It's a hoax on patients,'' said Scott Imler, director of the Cannabis Buyers' Club in West Hollywood which dispenses smokable and edible marijuana to medical patients.

``We think it's a matter of patient health and safety to know about the Cannabis Buyers' Club, to know there's an alternative to the alley,'' he said.

But Graham Boyd, a lawyer for the doctors and patients who filed the suit, declared the ruling a victory.

``This means doctors can do what they normally do: talk to their patients and give advice,'' Boyd said. ``It means that a doctor is doing nothing more than exercising free speech.''

Smith issued a preliminary injunction in a doctors' lawsuit that was similar to a temporary restraining order she issued April 11 allowing doctors to recommend marijuana without fear of criminal prosecution.

This time, Smith said she would bar federal action - such as prosecution or withdrawal of prescription licenses - against doctors who discuss or recommend marijuana to their patients, but would ``draw the line at criminal conduct,'' such as helping buy or cultivate marijuana.

The order applies to doctors who recommend marijuana for patients with acquired immune deficiency syndrome or the virus which causes AIDS, cancer, glaucoma, and seizures or muscle spasms associated with a chronic, debilitating condition.

The 10 doctors and five patients who filed the lawsuit say marijuana can relieve pain for all of those conditions, stimulate appetite or combat the debilitating effects of chemotherapy.

The federal government maintains that marijuana has no proven medical benefits.

Unless overturned by a higher court, the injunction will remain in effect until the lawsuit goes to trial.

The suit was filed after a state law was passed in November allowing patients to grow and possess marijuana for medical use at the recommendation of their doctors. Possession and cultivation remain federal crimes, however.

Bob Weiner, spokesman for the Office of National Drug Control Policy, said the administration would not comment until Justice Department lawyers reviewed the ruling.

The government can appeal to the 9th U.S. Circuit Court of Appeals and can ask the court to suspend the injunction during the appeal.

White House drug policy chief Barry McCaffrey said in December that any doctors who prescribed or recommended marijuana would lose their federal authority to prescribe drugs, would be excluded from Medicare and Medicaid and could face criminal charges.

Two months later, the administration issued a clarifying statement saying doctors could discuss marijuana with their patients as long as they did not help patients obtain the drug.