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Indiana Supreme Court upholds state's synthetic drug law

October 7, 2015

The Indiana Supreme Court on Wednesday upheld a state law that bans synthetic drugs and their look-alikes and gives the Indiana Board of Pharmacy the authority to add to the list of chemical compounds considered illegal.

The court ruled unanimously that the laws are not vague and that the Indiana Constitution’s distribution of powers clause gives lawmakers the ability to designate the pharmacy board to set rules that can be criminally enforced.

The decision comes in a case involving Christopher Tiplick, who faced criminal charges for possessing, selling, and dealing in a chemical compound designated XLR11 and for dealing and conspiracy to deal lookalike substances. He was arrested just five days after the synthetic drug law took effect and had argued it was too vague to be enforceable.

“While he may have the dubious honor of being the first person in Indiana history so charged, being first does not entitle him to a free pass,” said the ruling, which was written by Justice Mark Massa.

The Indiana Supreme Court upheld some of the charges against Tiplick and dismissed others—but only due to problems with some of the charging documents. The court said the laws are valid and therefore prosecutors can refile the dismissed charges.

At issue are synthetic drugs—often marketed as Spice or K2—that mimic the effects of marijuana and similar drugs. More than a dozen deaths have been attributed to the drugs nationally during the first half of the year.

Lawmakers initially tried to ban the drugs by including their chemical compounds in state law. But manufacturers would then make simple tweaks to their formulas before lawmakers could meet again to make changes.

So, in 2012, the General Assembly passed legislation that lets the pharmacy board maintain and update the list of banned compounds. The law also bans look-alike drugs, which it defines as something that a “reasonable person” would believe was a synthetic drug or something that a person should have known would be used to cause intoxication. The law specifically exempts food, alcohol, tobacco and a few other substances.

Sen. Jim Merritt, R-Indianapolis, authored the synthetic drug legislation and said he was pleased with Wednesday’s court ruling.

“These drugs are poisoning our communities and devastating families,” Merritt said. “This court ruling will help keep our children safe and stop the spread of these harmful drugs.”

In a statement, Attorney General Greg Zoeller said the court ruling “allows state law to keep pace with those criminals who manufacture synthetic drugs in endless new formulas to evade state law and target our youth.”

“To combat this deadly and growing synthetic drugs threat, we need quick, nimble measures that keep new synthetics off store shelves and away from Hoosier teens,” he said. “As the lawyer for state government, my office defended the legislature’s intent and authority to address the rise in dangerous synthetic drug availability and use in order to safeguard our kids from these poisons, and I’m pleased the statute has been upheld.”

The Indiana Supreme Court issued a similar ruling Wednesday in a second, similar case.

In January, the Indiana Court of Appeals had ruled in both cases that Indiana’s synthetic drug ban was unconstitutional because its definition of what substances are illegal was too vague. The defendants had argued that determining what drugs were illegal was too difficult to ascertain because lawmakers had given the pharmacy board the right to create some of the definitions.

But the Indiana Supreme Court disagreed.

“This is not a ‘maze,’ but rather a chain with three links—three discrete statutes which give clear guidance as to how to find everything falling within the definition of ‘synthetic drug,’” the ruling said. “Such a statutory scheme is not unduly vague.”

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