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Drug statutes not vague, but justices dismiss ‘spice’ charges

October 7, 2015

Two men who challenged their criminal charges for possessing chemical compound XLR11 had their charges dismissed by the Indiana Supreme Court Wednesday, but not because the statutes relating to the drug are unconstitutional as they had argued.

Christopher Tiplick and Aadil Ashfaque faced charges of dealing, possession, and or selling a synthetic drug – XLR11. At the time the two were charged, XLR11 had been criminalized based on Indiana Board of Pharmacy’s Emergency Rule 12-493(E). The Indiana General Assembly, in an effort to keep up with the numerous new synthetic drugs introduced in the state, delegated authority to the pharmacy board to adopt emergency rules that declare certain compounds to be a “synthetic drug.”

The charging information for both men did not include the specific emergency rule adopted by the pharmacy board making XLR11 a synthetic drug, and thus making it illegal. In separate actions, the two sought to dismiss their charges, arguing the statutory definition of “synthetic drug” and statutes criminalizing “look-alike” substances were void for vagueness and that the General Assembly could not delegate to the pharmacy board the power to declare new synthetic drugs illegal via an emergency rule.

On interlocutory appeal, a split Court of Appeals reversed, with the majority finding the provision in the statute allowing for the creation of emergency rule made the statute unconstitutionally vague.

But the justices held in Christopher Tiplick v. State of Indiana, 49S04-1505-CR-287, that the synthetic drug statute and the look-alike statutes are not unconstitutionally vague. And Justice Mark Massa noted this case presents a first impression issue: whether the General Assembly may delegate rulemaking power to an administrative agency if violation of such rule would result in penal sanctions. Not finding guidance from the Indiana Constitutional Convention of 1850-51, the justices sought guidance from other state courts and the Supreme Court of the United States and determined Indiana’s synthetic drug statute is not an unconstitutional delegation of legislative authority.

Massa also cited Burk v. State, a 1971 case involving LSD, in which the Indiana Supreme Court found the pharmacy board’s authority to determine whether additional substances met the definition of a “narcotic drug” under the state’s Uniform Narcotic Drug Act was appropriate even though criminal penalties would result.

But the XLR11-related counts of Tiplick and Ashfaque must be dismissed for failure to reference the emergency rule in the charging information. The state remains free to re-file an amended information with proper reference to the emergency rule, Massa noted. The cases are remanded for further proceedings.

The companion case is Aadil Ashfaque v. State of Indiana, 49S02-1505-CR-288.

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