Tiplick v. State
25 N.E.3d 190
Ind. Ct. App.2015Background
- In 2012 Tiplick was charged in an 18-count indictment; 11 counts alleged dealing in, conspiracy to deal in, or possession of a “synthetic drug” (counts VII–XV, XVII–XVIII) based on undercover purchases of products labeled “spice,” some containing XLR11.
- The probable cause affidavit identified the chemical XLR11 but did not cite any specific Pharmacy Board emergency rule that declared XLR11 a synthetic drug.
- At the time, Ind. Code § 35-31.5-2-321(9) defined “synthetic drug” to include “any compound determined to be a synthetic drug by rule adopted under IC 25-26-13-4.1,” and § 25-26-13-4.1 authorized the Pharmacy Board to adopt emergency rules declaring substances synthetic drugs.
- The Pharmacy Board filed Emergency Rule LSA Doc #12-493(E) (filed Aug. 15, 2012; effective Sept. 15, 2012) that identified XLR11 as a synthetic substance, but the rule used the phrase “synthetic substance” rather than “synthetic drug.”
- Tiplick moved to dismiss arguing the statutory scheme was unconstitutionally vague (and also challenged separation of powers); the trial court denied the motion and certified the denial for interlocutory appeal. The appellate court reversed as to the counts relying on the rule-based definition of “synthetic drug.”
Issues
| Issue | Tiplick's Argument | State's Argument | Held |
|---|---|---|---|
| Whether Ind. Code §§ 35-48-4-10(a) and 35-48-4-11 (as charged) are unconstitutionally vague because they rely on the rule-based definition of "synthetic drug" in § 35-31.5-2-321(9) and § 25-26-13-4.1 | The cross-referenced statutory/regulatory scheme (statute list + Pharmacy Board emergency rules) is too diffuse and uncertain; an ordinary person cannot find or determine what compounds are criminally proscribed (a "Where's Waldo" problem) | The statutes and emergency rules give fair notice; the Board publishes emergency rules (in the Indiana Register) and a defendant has a duty to know the law; the scheme is not like the broad cross-reference in Healthscript | Reversed as to counts relying on § 35-31.5-2-321(9)/§ 25-26-13-4.1: the statutes were unconstitutionally vague to the extent they depended on the rule-based definition (trial court erred in denying dismissal) |
| Whether the statutes violate the Separation of Powers Clause or render the information defective | Tiplick argued separation-of-powers concerns and that the charging information was defective | State defended legislative delegation and sufficiency of the information | Court did not decide these issues because vagueness disposition was dispositive (trial court’s other rulings left unaddressed) |
Key Cases Cited
- Brown v. State, 868 N.E.2d 464 (Ind. 2007) (articulates vagueness standards for penal statutes and two-pronged test: notice and risk of arbitrary enforcement)
- Healthscript, Inc. v. State, 770 N.E.2d 810 (Ind. 2002) (statutory cross-reference to a sprawling body of law may render a criminal statute void for vagueness)
- Kaur v. State, 987 N.E.2d 164 (Ind. Ct. App. 2013) (upheld convictions where the drug at issue was specifically listed in the statutory definition, distinguishing rule-based definitions)
- Elvers v. State, 22 N.E.3d 824 (Ind. Ct. App. 2014) (scientific terminology in statutory lists does not by itself make a statute vague; case involved substances specifically identified in the statute)
- Aquila, Inc. v. C.W. Mining, 545 F.3d 1258 (10th Cir. 2008) (quoting the burden on parties to cite authorities and not force fact-finders to search the record; cited by majority by analogy to the impracticality of searching scattered sources)