‘Spice’ law void for vagueness, divided panels rule

Dave Stafford for www.theindianalawyer.com

Divided Court of Appeals panels found Indiana’s “spice” law void for vagueness in two separate cases Tuesday.

In Christopher Tiplick v. State of Indiana, 49A04-1312-CR-617, a panel found synthetic drug statutes unconstitutional as applied to the owner of three Indianapolis Smoke Shop locations who was indicted for dealing synthetic drugs.

Christopher Tiplick was accused in an 18-count indictment of numerous felony charges including possessing and dealing synthetic drugs. Tiplick appealed a Marion Superior court’s denial of his motion to dismiss 11 counts, and a majority of a Court of Appeals panel reversed on interlocutory appeal Tuesday, dismissing those counts.

Writing Judge Melissa May and concurring Judge James Kirsch focused on the statutory scheme in which dozens of banned synthetic drugs are identified in the Indiana Code, and additional compounds may be declared a synthetic drug by pharmacy board rulemaking.

“Tiplick argues Ind. Code § 35-31.5-2-321(9) and by implication Ind. Code § 25-26-13-4.1 are void for vagueness because their “numerous cross-references, undefined terms, and required monitoring of Indiana statutes and promulgations of the Pharmacy Board cannot be understood by an ordinary person. … We agree,” May wrote.

“As Ind. Code §§ 35-48-4-10(a) and 11 form the basis for Counts (7-18), and we hold those statutes are unconstitutionally vague based on the definition of ‘synthetic drug’ set forth in Ind. Code § 35-31.5-2-321(9), the trial court erred when it denied Tiplick’s motion to dismiss those charges.”

Tiplick was indicted after he allegedly sold a synthetic drug called XLR11. The drug was not listed as a synthetic drug under I.C. §§ 35-31.5-2-321(1-8) at the time of the alleged sales, the majority held, and the pharmacy board shortly before had declared XLR11 a “synthetic substance” by emergency rule, but not a “synthetic drug.”

“While that distinction may seem trivial, we believe the technical nature of this particular statute requires precision in language. For example, the Pharmacy Board may declare a new chemical concoction used to treat a deadly disease a ‘synthetic substance’ and such a declaration would not invoke the criminal consequences as would the Pharmacy Board’s declaration of something as a ‘synthetic drug,’” May wrote.

“To require a citizen of ordinary intelligence to meticulously search through the criminal code, the administrative code, and not-yet-codified agency rules for information regarding a charge, only to be sent on a ‘Where’s Waldo’ expedition is ludicrous,” the majority held.

Dissenting Judge L. Mark Bailey took exception with that characterization.

“It seems to me that Tiplick’s void-for-vagueness challenge is more akin to an attempt to claim ignorance of the law as a defense to criminal liability,” Bailey wrote.

“Not having looked to the laws that apply to one’s actions does not excuse an individual from violating those laws. Tiplick was alleged to have engaged in the sale of a drug; he does not claim that the drug was not subject to an emergency regulation. The applicable laws and regulations are not so complex or overly broad as to preclude a person of ordinary intelligence from having fair notice of the criminal nature of the sale of XLR11 on the basis of vagueness.”

In Aadil Ashfaque v. State of Indiana, 49A02-1404-CR-286, a separate panel reached a similar conclusion, reversing a trial court’s denial of Ashfaque’s motion to dismiss Class D felony charges of dealing in a synthetic drug and possession of a synthetic drug after XLR11 was found in his vehicle after a traffic stop.

Again writing for the majority joined in this case by Judge Ezra Friedlander, May writes that Ashfaque argues the statutes “are void for vagueness because ‘[a]n ordinary person cannot be
required to follow and understand Indiana’s synthetic drug statutory maze.’ … We agree.

“The burden to meticulously weave through the labyrinth of criminal statutes, administrative code provisions, and not-yet-codified agency rules is inconsistent with the ‘process’ our Founding Fathers believed we were due before being charged with criminal offenses,” May wrote.

Court of Appeals Chief Judge Nancy Vaidik dissented in Ashfaque, aligning her dissent with Bailey’s in Tiplick.

“Because I do not believe that the statutory scheme that was in effect at the time of Ashfaque’s alleged crimes for dealing in and possession of synthetic drugs is void for vagueness, I respectfully dissent and would affirm the trial court’s denial of Ashfaque’s motion to dismiss the dealing and possession counts,” Vaidik wrote.