May, J.
[1] Christopher Tiplick appeals the denial of his motion to dismiss eleven counts of his eighteen count indictment. He presents multiple issues for our review, one of which we find dispositive: whether, at the time of Tiplick’s alleged offenses, Ind. Code § 35-48-4-10(a), which prohibited dealing in a synthetic drug, and Ind. Code § 35-48-4-11, which prohibited possession of a synthetic drug, were unconstitutionally vague when the synthetic drug alleged to have been dealt in or possessed was not listed in the relevant definitional statutes and can be found only in the Pharmacy Board Regulations?
[2] We reverse and remand.
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[11] At the time Tiplick allegedly committed the offenses, Ind. Code § 35-31.5-2-321 listed over sixty specific chemical compounds, and it included eleven sections regarding compounds “structurally derived” from other chemicals. Ind. Code § 35-31.5-2-321(1) – (8) (2012). It provided a synthetic drug is “Any compound determined to be a synthetic drug by rule adopted under IC 25-26-13-4.1.” Ind. Code § 35-31.5-2-321(9) (2012). Ind. Code § 25-26-13-4.1 (2012), [footnote omitted] which outlines the duties of the Pharmacy Board, states:
[12] (a) The board may adopt an emergency rule to declare that a substance is a synthetic drug.
[13] (b) The board may adopt an emergency rule declaring a substance to be a synthetic drug if the board finds that the substance:
[14] (1) has been scheduled or emergency scheduled by the United States Drug Enforcement Administration; or
[15] (2) has been scheduled, emergency scheduled, or criminalized by another state.
[16] (c) A rule adopted under this section becomes effective thirty (30) days after it is filed with the publisher under IC 4-22-2-37.1.
[17] (d) A rule adopted under this section expires on June 30 of the year following the year in which it is filed with the publisher under IC 4-22-2-37.1.
[18] (e) The board may readopt under this section an emergency rule that has expired.
[19] Tiplick argues Ind. Code § 35-31.5-2-321(9) and by implication Ind. Code § 25-26-13-4.1 are void for vagueness because their “numerous cross-references, undefined terms, and required monitoring of Indiana statutes and promulgations of the Pharmacy Board cannot be understood by an ordinary person.” (Br. of Appellant at 27.) We agree.
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[22] 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. . . . No person of ordinary intelligence could determine what behavior is prohibited by the term “synthetic drug” in Ind. Code §§ 35-48-4-10(a) and 11, based on Ind. Code §§ 35-31. 5-2-321(9) and 25-26-13-4.1, and thus the portions of Ind. Code §§ 35-48-4-10(a) and 11 in effect at the time of Tiplick’s alleged offenses are void for vagueness to the extent they rely on definitions in Ind. Code §§ 35-31.5-2-321(9) and 25-26-13-4.1. See Healthscript, 770 N.E.2d at 816 (holding the requirement that a person search through multiple statutes, then through the administrative code, “lacks the ‘sufficient definiteness’ that due process requires for penal statutes.”).
Kirsch, J., concurs.
Bailey, J., dissenting:
[33] Not having looked to the laws that apply to one’s actions does not excuse an individual from violating those laws. Tiplick was alleged to have engaged in the sale of a drug; he does not claim that the drug was not subject to an emergency regulation. The applicable laws and regulations are not so complex or overly broad as to preclude a person of ordinary intelligence from having fair notice of the criminal nature of the sale of XLR11 on the basis of vagueness. [Footnote omitted.]
[34] I therefore respectfully dissent