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Synthetic Drugs Remain Illegal in Indiana

Nov 30 2015, by Sean Hessler in Criminal Defense, Drug Charges, Legal Blog

The Indiana Supreme Court appears to have settled the question whether the state’s laws regarding criminalization of synthetic drugs such as “spice” and “bath salts” is unconstitutionally vague.

In opinions issued in October in the Tiplick v. Indiana and Ashfaq v. Indiana companion cases, the state’s highest court ruled that the statutes are in fact constitutional — meaning that prosecutions can continue for charges involving synthetic drugs.

The Tiplick and Ashfaq Cases

The two cases involved men arrested in Indianapolis for possession and trafficking in XLR-11, a form of synthetic cannabis. The issue involved the way that synthetic drugs are classified as illegal in Indiana. In the case of XLR-11, the General Assembly hadn’t added it to the list of illegal synthetic drugs, but the state Board of Pharmacy had listed it using its rulemaking authority.

Attorneys for Tiplick and Ashfaq argued that having two systems for classifying synthetic drugs as illegal was too complicated and unconstitutionally vague because someone reading the state’s synthetic drug crimes statutes would also have to look at the Board of Pharmacy list to know whether a given drug was illegal.

A Court of Appeals judge agreed, and likened the requirement to search both lists to a “’Where’s Waldo’ expedition.”

The Court of Appeals rulings in the Tiplick and Ashfaq case threw into question whether Indiana prosecutors could continue to charge and try criminal defendants for synthetic drug offenses.

However, the Indiana Supreme Court’s rulings preserved the original status quo and allowed these offenses to continue to be prosecuted once the Board of Pharmacy lists a drug as an illegal controlled substance.

What This Means For Indiana Synthetic Drug Cases

The reason it mattered whether the Board of Pharmacy could declare a drug illegal is that a prosecutor must prove that you know a controlled substance is illegal in order to convict you of a drug charge, whether it’s possession or trafficking. However, the old adage that “ignorance of the law is no excuse” applies, and there’s a presumption that if a drug is listed as illegal then you should know it’s illegal.

If the Indiana Supreme Court had agreed that it was unconstitutionally vague to expect a criminal defendant to look in two places to determine if a drug was illegal, then that presumption that you should have known a drug was illegal would have disappeared — making it much harder for a prosecutor to make his or her case against you.

With the Supreme Court’s rulings in Tiplick and Ashfaq, the legal presumption stands that if a drug is on the list then you should know it’s illegal. The burden then shifts to you as the defendant to rebut that presumption and demonstrate that you didn’t know the drug was illegal, if that’s the basis of your defense to a synthetic drug charge.

How an Indiana Drug Defense Lawyer Can Help

This pair of rulings by the Indiana Supreme Court make it more important than ever to secure the help of a skilled Indiana drug defense lawyer if you’ve been charged with synthetic drug possession or dealing. It may be critical to your defense to understand where to look to determine if a synthetic drug actually is illegal.

At Hessler Law, we have significant experience defending people charged with Indiana drug offenses, including synthetic drug offenses. We know how the law works and how to build a strong defense to your charge. Call us today at (317) 886-8800 to schedule a consultation about your case and learn your options for a defense.

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.