To know whether a substance is an illegal synthetic drug, a person must wade through dozens of chemical compounds listed in the Indiana statute.
It's confusing for judges — and especially for everyone else.
Last week, the Indiana Court of Appeals ruled that state law criminalizing the dealing in and possession of synthetic drugs is too vague for the average citizen to understand and, therefore, is unconstitutional.
The current code lists a hodgepodge of about 80 compounds; at least one of those needs to be present in a substance for it to be considered a synthetic drug. The Indiana Board of Pharmacy also is authorized to declare additional substances synthetic drugs, more commonly known as bath salts or spice. That means people must consult a separate statute that lists the additional compounds.
In a 2-1 ruling last week, a Court of Appeals panel decided that's too much to ask for.
"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," Court of Appeals Judge Melissa May wrote in an opinion issued Jan. 27.
The ruling involved the case of a young owner of a small smoke shop chain in Indianapolis who was accused of selling "Primo" and other synthetic drugs that produce the psychological effects of illegal narcotics.
Christopher Tiplick was arrested in October 2012 after detectives made undercover purchases of synthetic drugs at three stores he owned, according to court documents. Tiplick, 23, was charged with 18 felonies, including several counts of dealing in a lookalike substance and conspiracy to commit dealing in a lookalike substance.
Tiplick had asked a Marion Superior Court judge to dismiss 11 of the charges, saying a regular member of the public cannot be expected to know what substance is and is not illegal, considering the complexity of the statute. The judge had denied that request. Last week, two of three Court of Appeals judges agreed with Tiplick and reversed the lower court's ruling.
One dissenting judge wondered whether defendants could use the vagueness claim as a cover for criminal activity.
Judge Mark Bailey disagreed with his colleagues' "Where's Waldo" characterization, saying an average person needs to look at only a few statutory provisions and agency rules to determine whether a substance is a synthetic drug.
"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."
The ruling in Tiplick's favor also was based on a technicality.
The substance that Tiplick was accused of dealing in and selling contains a compound called XLR11, which was not listed in the statute at the time of his arrest. And, although it had been declared a "synthetic substance" by the pharmacy board, it was not declared a "synthetic drug."
"While that distinction may seem trivial, we believe the technical nature of this particular statute requires precision in language," May wrote. "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.'"
The Court of Appeals made a similar ruling Jan. 27 in another case that raised the same issues.
Ashfaque Aadil was arrested and charged in May 2013 with dealing in and possession of a synthetic drug. An officer found XLR11 in Aadil's car during a traffic stop, according to documents.
As in Tiplick's case, a divided Court of Appeals panel reversed a lower court's ruling that denied Aadil's request to dismiss charges against him.
One of three appellate judges, Chief Judge Nancy Vaidik, disagreed with the ruling.
"I, too, believe that the applicable laws are not so complex or overly broad as to preclude a person of ordinary intelligence from having fair notice of the criminal nature of XLR11 on vagueness grounds," Vaidik wrote.
Indianapolis attorney Mark Rutherford, who represents Tiplick and Aadil and has worked on several cases involving synthetic drugs, said he respects the dissenting judges' concerns, but he thinks the law should be clear and concise.
"You have to jump around all these different code sites and you have to know how to look up decisions by the board of pharmacy," Rutherford said. "It confuses lawyers. It's very difficult for the average citizen to determine whether their actions are illegal or not."
Rutherford said legislators need to reform the statute to make it more understandable for the average citizen.
Capt. Robert Holt, who does undercover investigations with the Indianapolis Metropolitan Police Department, said he's disappointed with the Court of Appeals' ruling in Tiplick's case. He said the current statute gives law enforcement a broader authority to enforce synthetic drug laws.
"We know if somebody is selling a substance labeled as spice or K2 or something like that," Holt said. "We know that the intent is that this individual will use it to ingest it."
The state has 30 days from when the Court of Appeals issued the rulings to file an appeal.