The use of synthetic drugs or “knock-offs” of illegal substances has risen dramatically in Indiana over the past few years. Distributors are constantly creating new synthetic drugs such as “spice” and “bath salts” that will give people highs similar to popular street drugs without technically being on the controlled substances list.
But the state of the law with regard to synthetic drug prosecutions is complicated, especially in Indiana. The waters were muddied earlier this year when the Indiana Court of Appeals issued rulings in two synthetic drug cases that essentially said Indiana synthetic drug laws are too vague for an ordinary person to understand and are therefore unconstitutional. That makes prosecuting someone under these laws problematic until the Indiana Supreme Court renders a decision on their validity.
The Ashfaque and Tiplick Cases
Aadil Ashfaque and Christopher Tiplick each were arrested in Indianapolis for possession of and trafficking in a form of synthetic marijuana called XLR-11. The drug hadn’t technically been declared illegal and added to the controlled substances list by the General Assembly, but had been added to a list of illegal synthetic drugs by the Board of Pharmacy as part of its rulemaking process.
Lawyers for Ashfaque and Tiplick argued in their separate cases that the way Indiana’s synthetic drug crimes laws work is unconstitutionally vague because a person couldn’t clearly tell from statutes which drugs are actually illegal. The requirement that someone must also find out which drugs the Board of Pharmacy has declared illegal was confusing and made it unclear whether a drug not listed by its chemical compound in statutes could be possessed or sold without penalty.
Court of Appeals Judge May wrote in Tiplick v. Indiana, 25 N.E.3d 190 (Ind. Ct. App. 2015): “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.”
The reason this matters is that in order to be convicted of the crime of possession or trafficking in illegal drugs — whether synthetic or not — a prosecutor must prove that the accused knew that the substance at the heart of the offense was illegal. There’s a presumption that if a substance is listed as illegal in statutes, then a defendant should know that it’s illegal.
However, when the defendant has to essentially search out a needle in a haystack to figure out if a substance is legal or illegal, then that presumption disappears and a prosecutor can’t use the fact that the substance appears on a Board of Pharmacy list as evidence that the defendant knew or should have known that it was illegal.
Synthetic Drugs Laws in Limbo
The Indiana Supreme Court heard oral arguments in the Ashfaque and Tiplick cases in July 2015, but has yet to render a decision in either case. However, the effect of the state Supreme Court taking up these two cases is to effectively void for the time being the Court of Appeals rulings until the Supreme Court takes a definitive stance.
That means that prosecutions can continue under these laws despite the Court of Appeals ruling that they were unconstitutional. However, that also means that prosecutions are subject to challenge and scrutiny by skilled Indiana criminal defense lawyers who can make the same arguments that were successful in the Ashfaque and Tiplick cases.
What Does It Mean If I’m Arrested for Charges Related to Synthetic Drugs?
With the belief that prosecutors cannot rely on the presumption that you knew a drug was illegal, many people think that they are safe from conviction. They shrug off arrests, thinking that the charges won’t stick based on recent news about these controversial and complex cases. Unfortunately, that’s not true. After this ruling, an arrest for synthetic drug distribution or possession is still a serious matter that can result in substantial jail time and a large fine in Indiana.
However, what has changed is that people who have been tricked into selling synthetic drugs thinking they were legal have a defense to charges against them. If you have been fooled about the legality of what you were selling or—even worse—coerced, an experienced Indiana drug defense lawyer will be able to present your side of the story and help build an effective defense against the charges.
If you are facing charges involving synthetic drugs, call the experienced Indiana drug defense lawyers at Hessler Law today for a free consultation about your case. We will help you better understand the nature of your charges, your options, and what to expect from the criminal process.
The outcome of an individual case depends on a variety of factors unique to that case. Case results do not guarantee or predict a similar result in any similar or future case.