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New law proposed after Indiana synthetic drug ban thrown out

INDIANAPOLIS (WISH) – An Indianapolis lawmaker is now promising quick action after an appeals court declared the state’s ban on synthetic drugs unconstitutional. If upheld, the ruling could significantly alter the ban on more than 80 different compounds, known by street names like spice, bath salts and N-BOME.

The decision follows a series of I-Team 8 investigations that began in 2011 which prompted lawmakers to outlaw specific chemical compounds used to give the products the ability to mimic traditional narcotics. An I-Team 8 investigation in 2012 then uncovered some retailers skirting the law by simply tweaking the chemicals they contain.

In response, legislators added more compounds to the list of banned substances and authorized the Indiana Board of Pharmacy to add to the list as it saw fit on an ongoing basis.

But, in a 2-1 ruling issued last week, the Indiana Court of Appeals said the law is “too vague for the average citizen to understand.”

A spokesman for Attorney General Greg Zoeller said his office does not believe the Court of Appeals ruling declared the entire statute unconstitutional, just the portion involving the Board of Pharmacy. If it’s upheld, only the existing compounds written specifically into the law would be illegal, leaving manufacturers free to tweak the compounds to make them legal again.

The Court of Appeals ruling came in the case of 23-year-old Christopher Tiplick, charged in 2012 with 18 felony counts of dealing in a synthetic drug and conspiracy to commit dealing in a synthetic drug. The charges were based on a series of undercover ‘buys’ made by officers at three Indianapolis stores owned by Tiplick. He filed a motion to dismiss the charges, arguing that the statute permitting them is “unconstitutionally vague.”

Writing for the majority, Judge Melissa May said the statute was unclear.

“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,” she wrote.

Judge Mark Bailey disagreed with that characterization, saying the statute is not vague, and that the compound Tiplick is accused of selling is “expressly identified as a synthetic drug under Emergency Rule” by the Pharmacy Board.

“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.

Despite that objection, the panel found that the trial court erred when it denied Tiplick’s motion to dismiss the charges based on the argument that the statutes are ‘unconstitutionally vague based on the definition of synthetic drug.’

Senator Jim Merritt (R-Indianapolis), who wrote the law, called that decision a mistake.

“I am upset about it,” he told I-Team 8. “I think the law is very clear. And, ignorance of that law is no reason to shut down the synthetic drug law.”

Merritt says he included the Pharmacy Board as an option to ‘keep up’ with the changing compounds, and believes a clause classifying “lookalike drugs” as illegal should be upheld as legal. That law makes a synthetic drug illegal if its effects mimic the real thing.

“That’s the whole idea behind it. If it looks like a duck, quacks like a duck, it’s a duck. And, there are too many people that have been trying to subvert and get around the law. We felt as though the law was ironclad. And, if it looked like a substance and was used as a substance, it was the substance,” Merritt said.

A spokesman for Zoeller said he will appeal the appeals court decision. Notice is expected to be filed by the end of February, with briefs filed in the case shortly afterward. The ruling will be stayed–or placed on hold–until the Supreme Court weighs in.

Merritt, however, isn’t waiting around for the outcome of the case.

“The bottom line is: we need an ironclad, constitutional law. And, if the Supreme Court shall side with the Appellate Court, then we’ve got to come up with something brilliant,” he said.

Merritt intends to draft a new version of the law within the next 30 days for consideration as an amendment during this legislative session. It will include stiffer penalties against those caught selling synthetic drugs.

“They know how much time they’re going to get inside in the Department of Corrections [if they’re caught selling synthetic drugs],” Merritt said. “And, the law that we have right now with the synthetics, it’s a lot less time than with the regular drugs. That has to change.”

The Attorney General has 30 days to request an appeal to the Supreme Court.