Monday, February 2, 2015

Indiana Court of Appeals finds designer drug laws unconstitutational

Over the past week the Indiana Court of Appeals has issued some rather interesting and major opinions regarding designer drugs and the state’s legislation controlling them.

I won’t get very detailed here (I’m not an attorney and will never pretend to be one even if staying at a Holiday Inn), but overall, the rulings stated that the designer drug laws as written were determined to be void for vagueness and therefore unconstitutional. The unrelated cases heard by the court stem from 2012-2013 seizures of drugs and subsequent arrest of individuals on felony charges associated with what the state determined to be possession, dealing,  and/or conspiracy to commit dealing “synthetic drug lookalike substances” – the state’s new language regarding a controlled substance analog without all the sciency jargon.  That “synthetic drug lookalike substance” at the center of these two cases was the synthetic cannabinoid XLR11 and it was being compared to already controlled JWH-018 and AM-2201.

As noted, the state has thirty (30) days to file an appeal of the appeals decision. We all know that they will file one.
The opinions in their entirety can be found here:
Christopher Tiplick v. State of Indiana

Aadil Ashfaque v. State of Indiana

Well, what does the Indiana state law say about "lookalike substances"? That'd be good to know, eh?
Indiana Code 35-31.5-2-321.5 defines a "synthetic drug lookalike substance" as one or more of the following:
1. A substance, other than a synthetic drug, which any of the factors listed in subsection c would lead a reasonable person to believe to be a synthetic drug.
2. A substance, other than a synthetic drug:
    A. that a person knowns or should have known was intended to be consumed;  and
    B. the consumption of which the person knowns or should have known to be intended to cause intoxication.
The term "synthetic drug lookalike substance" does not pertain to food and food ingredients, alcohol, a legend drug, tobacco, or a dietary supplement.
In determining whether a substance is a "synthetic drug lookalike substance", the following factors may be considered:
1. the overall appearance of a dosage unit of the substance, including its shape, color, size, markings or lack of markings, taste, consistency, and any other identifying physical characteristics.
2. how the substance is packaged for sale or distribution, including the shape, color, size, markings or lack of markings, and any other identifying physical characteristics of the packaging.
3. Any statement made by the owner or person in control of the substance concerning the substance's nature, use, or effect.
4. Any statement made to the buyer or recipient of the substance suggesting or implying that the substance is a synthetic drug.
5. Any statement made to the buyer or recipient of the substance suggesting or implying the substance may be resold for profit.
6. The overall circumstances under which the substance is distributed, including whether:
    A. the distribution included an exchange of, or demand for, money or other property as consideration; and
    B. the amount of the consideration was substantially greater than the reasonable retail market value of the substance the seller claims the substance to be.
 The legal definition muddies the waters, that's about it.
When the “lookalike substance” legislation was pending in the Indiana General Assembly in 2012-2013, I immediately questioned its appropriateness, enforceability, and constitutionality via multiple channels (formally and informally).

We'll see what happens, but the recent opinions issued by the Court of Appeals  is, at least in my mind, a massive blow to Indiana legislators and law enforcement officials and their efforts (misguided or not, that's really a conversation for another day) to control every compound that emerges on the gray market.

Disclosure: I consulted and gave expert testimony on earlier versions of Indiana's designer drug legislation to the General Assembly and associated committees in 2010-2012. I did not consult with Indiana legislators on the "synthetic drug lookalike substance" language of 2013.


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