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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowThe Court of Appeals of Indiana has reaffirmed an earlier ruling that held the state’s classification of a synthetic cannabinoid as a Schedule I controlled substance is unconstitutionally vague.
In a July 2022 ruling, the appellate panel reversed the Marion Superior Court’s denial of the motions to dismiss filed by Travis Armes, Eric Settles and Debra Pennington. The trio has been charged with felonies involving the synthetic substance MDMB-4en-PINACA.
The same panel granted rehearing and in Travis Armes, Eric Settles, and Debra Pennington v. State of Indiana, 21A-CR-2384, upheld the previous ruling.
“The State and Public must deal with the brisk influx of a newly created synthetic substances, some of which are not controlled substances,” Judge Terry Crone wrote for the panel, noting MDMB is a “relative newcomer” and was designed as a Schedule I narcotic by an emergency rule. “The Emergency Rule … did not provide the chemical composition of MDMB, and without it, a person of ordinary intelligence would not be able to determine through appropriate testing whether a material contained it.”
Previously, the panel, which also included Judges Nancy Vaidik and Robert Altice, relied on Tiplick v. State, 43 N.E.3d 1259 (ind. 2015).
The Indiana Supreme Court expressed skepticism at oral arguments. However, the court ultimately concluded the emergency rule that declared XLR11 as a Schedule I controlled substance was not unconstitutionally vague because the rule included the chemical formula.
Conversely, the panel pointed out in its rehearing decision that the emergency rule for MDMB neither explicitly identifies the listed substances as synthetic drugs nor provides the chemical composition.
The state countered on rehearing that the “commonly accepted scientific name” would put an individual of ordinary intelligence on alert as to which substance was illegal.
However, the panel was not convinced.
“We note that other than Indiana, only Hawaii, South Dakota, and Virginia have criminalized MDMB. While the relevant statutes categorize MDMB as a cannabinoid or synthetic cannabinoid and provide a chemical composition for the substance, the statutes do not provide the same chemical composition,” Crone wrote. “… As for our Emergency Rule, it is unclear to us how a person of ordinary intelligence would be able to determine whether a material contained whatever it is the State considers MDMB to be, which begs the question as to how the State will prove that a material contains MDMB.”
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