INDIANAPOLIS (WISH) - Indiana lawmakers are trying another new approach to crack down on the sale of synthetic drugs known by names like bath salts and spice. And they're again targeting retailers to do it. But, some say the state's latest proposal goes too far.
I-Team 8 first exposed the problem two years ago , as synthetic drugs with names like Ivory Wave and Cloud 9 were first being openly sold on store shelves. That investigation led to a new state law making the compounds illegal.
Lawmakers thought they'd solved the problem.
But, as I-Team 8 first uncovered last year retailers across Central Indiana continued to sell them as drug makers tweaked the chemical compounds to keep the drugs legal.
So, lawmakers fired back again in 2012, adding 60 new compounds to the list, and passing what they called at the time "landmark legislation" that gave the State Board of Pharmacy the ability to adopt "emergency rules." Lawmakers had given the Board authority to "emergency schedule" new chemical compounds, making them illegal until legislators could return to session and outlaw them officially.
But, I-Team 8 also uncovered a problem with that approach: the Board can only make that declaration on substances already declared illegal in another state or by the federal government.
Police, prosecutors and lawmakers have continued playing "catch up" ever since, as tragic cases of the health problems associated with the drugs continue to mount.
So, now the state's approach is changing yet again.
"I think it's broader," said Sen. Jim Merritt (R-Indianapolis), when asked why this approach would differ from the previous ones. "It's tougher. And, it's sending a message to everyone in Indiana we're not going to put up with it again."
That message is again targeted at retailers.
While Merritt's bill—SB 536--makes dozens of new compounds illegal like the previous bills, it also makes the sale of "any substance that a reasonable person would believe is a synthetic drug" illegal too. If a retailer is caught selling either of them, the bill would allow the State Department of Revenue to revoke their license, based off the failure to collect the correct sales taxes.
"We're going to have to get tough with the retailers that sell this--these items--because they know exactly what they're doing," said Senate Courts and Criminal Code Committee Chairman Sen. Michael Young (R-Indianapolis).
But, some say assuming that they do could rob a business of their right to due process.
"I'm worried about passing a law that criminalizes non-criminal behavior. If you possess a substance that's not illegal, but I think it looks like an illegal substance then you committed a crime. If you're selling incense and representing it to be incense, but somebody else thinks it looks like a drug, that's criminal. So, you've got people who could be innocently doing a transaction that are running a business, not having any criminal intent, subject to criminal sanctions, loss of license for running the business and forfeiture of the business. That's some serious penalties," said Indiana Public Defender Council Executive Director Larry Landis.
"And, the consequences according to this bill is the loss of a retail license for a year," said Sen. Mark Stoops (D-Bloomington). "That's going to put a small retailer out of business. I'm not convinced all retailers are going to be able to keep track of what is illegal. It seems to me there should be a warrant. But, they say that would take too much time."
Merritt says that's the point.
And, he argues a similar system is already working in Marion County, where Prosecutor Terry Curry and Indiana Attorney General Greg Zoeller sent warning letters to businesses last fall after I-Team 8 uncovered another legal loophole that makes even the altered compounds illegal. It's called the "Indiana Drug Analog Act," and it allows prosecution for substances that mimic the affects of a controlled substance.
Those laws were too vague and lacked a key component: proof of intent, Curry said at the time. Sending warning letters solved that problem, he added.
"The two conditions of a criminal act are: doing the act itself and doing it with criminal intent. Absent some other undercover evidence to establish that they had that knowledge and intent, then we could not successfully prosecute them. Our point today is: we don't care if it meets the definition or not. We're putting you on notice and addressing that second component of a crime — the intent and knowledge," Curry said at the time.
"He did indict several individuals with a bust," Merritt said. "It is a look alike statute, so yes—this is very similar. And we need to send a similar message statewide. We don't want it distributed. We don't want it sold. And, we don't want it consumed."
Merritt's bill would also allow drivers found to be high on synthetic drugs to be charged with "operating while intoxicated," and would give new powers for civil cases to the State Attorney General's office.
It passed by a 6-3 vote Tuesday
and now goes to the full Senate for debate. Merritt says he plans to rewrite the portions on due process to give the bill a better chance of passing.
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