State files appeal to reverse Court of Appeals rulings on constitutionality of statute

INDIANAPOLIS – Indiana Attorney General Greg Zoeller is urging the Indiana Supreme Court to overturn two Indiana Court of Appeals’ decisions that recently struck down a portion of the state’s ban on synthetic drugs.

In similar decisions in two cases on Jan. 27, 2015, the Indiana Court of Appeals ruled a portion of Indiana’s synthetic drug ban was unconstitutional because its definition of what substances are illegal is too hard to find in some circumstances. The statute bans a list of more than 80 chemical compounds in addition to their look-alikes, as well as any substance declared a synthetic drug by the Board of Pharmacy. It is the latter set of drugs that are the subject of these appeals. The State filed its appeals of these rulings on Feb. 26.

“The statute is designed to be flexible and allow the Board of Pharmacy to update the banned synthetics list because the man-made nature of these drugs allows manufacturers to come up with endless new versions of these deadly products,” Zoeller said. “The result is continued access to these drugs, which creates in young people the tragic misconception that synthetics sold at the retail level are safer than the traditional drugs they are designed to mimic. We cannot afford to take a step backward and allow more youth to get their hands on these poisons.”

The use of synthetic drugs has increased dramatically in recent years, with the first reports of synthetic drugs appearing in the U.S. around 2009. Poison control centers across the country received 2,668 calls about exposures to synthetic drugs in 2013 and 3,677 exposures in 2014. According to a 2014 Indiana University study, nearly 14 percent of high school seniors in Indiana say they have tried synthetic marijuana. Synthetic drugs come in many different forms and when ingested, the substances cause serious and harmful effects that can be deadly.

State Sen. Jim Merritt (R-Indianapolis) is the author of Indiana’s original synthetic drug ban, which first became law in 2012. In response to the recent Court of Appeals’ rulings, he has authored new legislation in the current session in attempt to make the law more clear should the rulings remain in place. Senate Bill 93 would explicitly state where in the Indiana Administrative Code and on the Internet the public can find the Pharmacy Board’s orders banning additional synthetic drugs.

“Thankfully, Indiana has some of the strongest laws in the country regarding dealing and possessing synthetic drugs, but these laws, and our safety, have been jeopardized by this ruling,” Merritt said. “As an attempt to clarify our state’s current law against synthetic drugs, I authored Senate Bill 93. As long as synthetic drugs are prominent in our communities, Hoosier lives are at risk.”

SB 93 recently passed the Indiana Senate and now moves to the Indiana House of Representatives for further consideration.

Zoeller works with local and state partners to enforce Indiana’s synthetic drug laws, and has supported efforts to crack down on synthetic drug use at the state and national levels.

Recently, he joined with 42 other state attorneys general in urging oil companies to collaborate with their franchises to help eliminate synthetic drugs from retail locations that operate under their brand names, including gas stations and convenience stores.

Despite synthetic drug bans in all 50 states, in 2014, enforcement agencies confirmed more than 130 instances of branded gas stations having sold synthetic drugs.

A copy of the letter can be found here: http://bit.ly/16SlYfD. More information about Zoeller’s synthetic drug efforts can be found here: in.gov/attorneygeneral/2974.htm.

The Court of Appeals decision is not yet in effect, and would not take effect until after the Indiana Supreme Court rules. Although the Court of Appeals ruling did not declare the entire synthetic drug statute unconstitutional, it believed that the list of the newest synthetic drugs banned by the Indiana Board of Pharmacy should be easier to find. The Board already makes the list easily accessible on its website and in legal publications like the Indiana Register and Indiana Administrative Code.

When offenders appeal their convictions and sentences, the Attorney General’s Office represents the prosecution in the appeal, and also defends state statutes from legal challenges. The AG’s Office on Thursday filed nearly identical appeals of the Court of Appeals’ rulings in two cases: Christopher Tiplick v. State and Aadil Ashfaque v. State. The AG’s Office asks the Indiana Supreme Court – the state’s highest court – to reverse the Court of Appeals’ rulings invalidating part of the law and reinstate the entirety of the synthetic drugs statute. Here is an excerpt from the State’s brief in the Tiplick case:

“Due process is not offended by the notion that citizens must look at a few statutes and a handful of administrative rules, all of which are easily accessible to the public, in order to determine the legality of a desired course of conduct. The Court of Appeals’ contrary conclusion has far-reaching implications given the broad array of areas in which criminal and administrative law intersect . . . . Indiana’s system simply mimics decades old federal law addressing the problem that the legislative branch could not act quickly enough to keep pace with the constantly changing chemical structures of ‘designer drugs.’”

Now that the State has filed its appeal, defense lawyers for the two defendants will have the opportunity to file a response. The Supreme Court will decide at a later date whether to “grant transfer” and take the case for further review, and whether to schedule oral arguments. The two appeals can take place even as the Legislature considers possible changes to the statute.

NOTE: The State’s briefs in its petitions to transfer, filed in the Indiana Supreme Court in the Tiplick and Ashfaque cases, are attached.

• 2.26.15.State’s.Petition.to.Transfer.Tiplick.v.State.PDF
• 2.26.15.State’s.Petition.To.Transfer.Ashfaque.v.State.PDF