Crone, J.
The State charged Travis Armes, Eric Settles, and Debra Pennington (collectively Defendants) with various crimes involving a Schedule I controlled substance identified as MDMB-4en-PINACA (MDMB). They filed motions to dismiss the charging informations, which the trial court denied. In this interlocutory appeal, they argue that the charging informations fail to state facts constituting an offense because the emergency rule (the Emergency Rule) adopted by the Indiana Board of Pharmacy (the Board) purporting to add MDMB to Schedule I failed to comply with the authorizing statute. They also assert that the charging informations are defective because the Emergency Rule failed to provide fair notice of the proscribed conduct and is void for vagueness under the federal constitution.
We conclude that the Emergency Rule complied with the authorizing statute, and thus added MDMB to Schedule I. However, we agree with Defendants that the Emergency Rule fails to provide adequate information for a person of ordinary intelligence to determine whether he or she is dealing a substance that contains MDMB, and therefore it is unconstitutionally vague. Defendants are entitled to dismissal of the charges on this ground, and accordingly we reverse.
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Defendants first argue that they are entitled to dismissal on the basis that the charging informations fail to state facts constituting an offense because MDMB was not a Schedule I controlled substance when the alleged crimes occurred. See Ind. Code § 35-34-1-4(a)(5) (permitting dismissal of an information if “[t]he facts stated do not constitute an offense”).
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Defendants argue that the Emergency Rule did not comply with Section 4.1 and thus failed to make MDMB a Schedule I controlled substance. They maintain that Section 4.1 authorizes the Board only to “declare that a substance is a synthetic drug[,]” not to add a substance directly to the list of Schedule I controlled substances, and the Emergency Rule does not declare that MDMB is a synthetic substance or even use the word “synthetic.” The State counters that given the limited scope of Section 4.1, it is unnecessary to use the word “synthetic” within the language of the Emergency Rule to add MDMB to Schedule I. We agree with the State.
As discussed above, the governing statutes dictate that Schedule I controlled substances include substances adopted under Section 4.1. See Ind. Code §§ 3548-2-4(g), 35-31.5-2-321(13). Section 4.1 was enacted to allow additional substances to be added to Schedule I on an emergency basis. The Emergency Rule’s digest specifically states that the Rule temporarily amends 856 IAC 2-2-2 to add drugs to Schedule I and cites Section 4.1 as its authority to do so. The authority granted to the Board under Section 4.1 to adopt an emergency rule is limited to synthetic drugs. As such, it is implicit that the drugs identified in the Emergency Rule, including MDMB, are synthetic drugs because these are the only substances that the Board is authorized to add to Schedule I.
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Here, the Emergency Rule cites Section 4.1 as its statutory authority, states that it is adding substances to Schedule I, and names those substances. The Board is authorized to add substances to Schedule I because Schedule I includes substances that are adopted under Section 4.1. See Ind. Code §§ 35-48-2-4(g); 35-31.5-2-321(13). We conclude that the Emergency Rule effectively made MDMB a controlled substance. As such, Defendants are not entitled to dismissal of the charges on the basis that the informations fail to state an offense.
Defendants also assert that the charging informations are defective and must be dismissed because the Emergency Rule is unconstitutionally vague. See Ind. Code § 35-34-1-6(a)(3), -(c) (requiring dismissal of charging information when statute defining offense charged is unconstitutional).
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Under federal constitutional principles of due process, a penal statute must clearly define its prohibitions, and if it does not, it is void for vagueness. Brown v. State, 868 N.E.2d 464, 467 (Ind. 2007). “A criminal statute may be invalidated for vagueness for either of two independent reasons: (1) for failing to provide notice enabling ordinary people to understand the conduct that it prohibits, and (2) for the possibility that it authorizes or encourages arbitrary or discriminatory enforcement.” Id. Here, Defendants challenge the adequacy of the notice provided by the Emergency Rule.
“[A] fundamental aspect of our nation’s jurisprudence is that criminal statutes must give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden so that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.” Lock v. State, 971 N.E.2d 71, 74 (Ind. 2012). However, a statute “need only inform the individual of the generally proscribed conduct; it need not list with exactitude each item of prohibited conduct.” Baumgartner v. State, 891 N.E.2d 1131, 1136 (Ind. Ct. App. 2008).
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We begin with a discussion of Tiplick, in which our supreme court was asked to consider whether Sections 321 and 4.1 provided adequate notice under the federal constitution and concluded that they were not unconstitutionally vague. 43 N.E.3d at 1263-64. There, the defendant was charged with possessing, selling, and dealing in a Schedule I controlled substance designated XLR11, which was identified in Emergency Rule #12-493(E) as “XLR11 [(1-(5fluoropentyl)indol-3-yl)-(2,2,3,3-tetramethylcyclopropyl)methanone].” Id. at 1261 (quoting Ind. Reg. LSA Doc. No. 12-493(E), http://www.in.gov/legislative/iac/20120822-IR-856120493ERA.xml.html) [https://perma.cc/HXX8-3GZ7]. The defendant presented two arguments in support of his vagueness challenge, one of which was that the sheer complexity of Section 321 was beyond the grasp of an ordinary person and thus impermissibly vague.
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Here, Defendants limit their federal constitutional argument to the notice provided by the Emergency Rule, which is appropriate because their vagueness claim is considered on an as-applied basis. They emphasize the difference between the Emergency Rule here and the one in Tiplick to argue that the Emergency Rule fails to put an ordinary person on fair notice that dealing in MDMB was prohibited conduct. Unlike the rule in Tiplick, the Emergency Rule does not explicitly identify the listed substances as synthetic drugs. An even greater problem is that the Emergency Rule does not provide the chemical composition of MDMB. Thus, there is no official designation of what constitutes MDMB. In Tiplick, the court concluded that the rule provided fair notice to a person of ordinary intelligence because “an ordinary Hoosier, armed with this chemical formula for XLR11, could determine through appropriate testing whether he was attempting to sell any products containing it.” Id. at 1263. The Emergency Rule does not provide adequate information for a person of ordinary intelligence to determine whether he or she is dealing a substance that contains MDMB. Accordingly, the Emergency Rule fails to provide the notice required by due process under the federal constitution. Therefore, the trial court erred in denying Defendants’ motion to dismiss the charging informations.
As a final matter, Defendants also assert that the Emergency Rule and Section 4.1 are void for vagueness under the Indiana Constitution. Defendants contend that the Indiana Constitution provides greater protection to Hoosiers than the federal constitution, and therefore the vagueness analysis under the Indiana Constitution requires higher scrutiny than the federal constitution. In particular, they point to Article 4, Section 20 of the Indiana Constitution, which states, “Every act and joint resolution shall be plainly worded, avoiding, as far as practicable, the use of technical terms.” Defendants note that the delegate who proposed Article 4, Section 20 stated that the purpose of this section was to ensure that the laws “may be readily understood by every citizen who is bound to obey the laws,” and “[t]he laws ought to be so plain that every man can interpret them for himself, without the aid of a law dictionary. This is a reform that has been called for by the people. They are loudly complaining of the complexity of the laws.” 2 Report of the Debates and Proceedings of the Convention for the Revision of the Constitution of the State of Indiana 1128 (1850) …
The comments in support of Article 4, Section 20 suggest that a higher standard may be appropriate under the Indiana Constitution. See Hoagland v. Franklin Twp. Cmty. Sch. Corp., 27 N.E.3d 737, 741 (Ind. 2015) (“[Q]uestions arising under the Indiana Constitution are to be resolved by examining the language of the text in the context of the history surrounding its drafting and ratification, the purpose and structure of our Constitution, and case law interpreting the specific provisions.”) (quoting Nagy ex rel. Nagy v. Evansville-Vanderburgh Sch. Corp., 844 N.E.2d 481, 484 (Ind. 2006)). However, we need not resolve this question, given that we have already determined that the Emergency Rule is unconstitutionally vague under the federal constitution.
Based on the foregoing, we reverse the trial court’s denial of Defendants’ motions to dismiss.
Reversed.
Vaidik, J., and Altice, J., concur.