State v. Newman

Decision Date31 January 1985
Docket NumberNo. 14995,14995
Citation108 Idaho 5,696 P.2d 856
PartiesSTATE of Idaho, Plaintiff-Appellant, v. Charles and Hong NEWMAN, Defendants-Respondents.
CourtIdaho Supreme Court
Jim Jones, Atty. Gen., and Lynn E. Thomas, Sol. Gen. (argued), Boise, for plaintiff-appellant

Eugene A. Marano, Coeur d'Alene, for defendants-respondents.

BISTLINE, Justice.


On April 23, 1982, Charles and Hong Newman were charged with delivery of drug paraphernalia and possession of drug paraphernalia with intent to deliver, in violation of I.C. § 37-2734B, a section of Idaho's Drug Paraphernalia Act. 1 On December 23, 1982, both defendants filed motions to dismiss the charges pending against them, arguing that Idaho's Drug Paraphernalia Act is unconstitutional. The state and the defendants stipulated to, and the district court conducted, a facial consideration of the Act's constitutionality; thus, the issue considered at trial was that of the facial constitutionality of the Act and not the constitutionality of the Act in light of the conduct in which the Newmans were charged.

The district court agreed with the defendants, holding the Act to be unconstitutionally vague and overbroad on its face, in violation of the due process clause of the Fourteenth Amendment of the United States Constitution. In particular, the district court found two constitutional flaws in the Act: (1) The Act's definition of "drug paraphernalia" contains undefined terms used in drug traffic that are not words of common usage and understanding. Consequently, the Act does not give fair notice to the public of prohibitive conduct; and (2) the Act's intent provisions allow an individual to be prosecuted based upon the intent of another person. 2

Applying the rules governing facial challenges to the constitutionality of a statute on vagueness and overbreadth grounds, we find the Act in question to be constitutional on its face for the reasons set forth below, and thus reverse the district court. We will begin by reviewing the history and purpose of Idaho's Drug Paraphernalia Act.


On April 9, 1980, Idaho enacted its Drug Paraphernalia Act, to become effective on July 1, 1980. The Act tracks closely the Model Drug Paraphernalia Act (the Model Act), which was written by the Drug Enforcement Administration (DEA) of the United States Department of Justice. The Model Act was written by DEA in an attempt to overcome constitutional infirmities of earlier drug paraphernalia legislation. 3 The major constitutional problem with the earlier statutes was that they failed to require specifically that the accused's intent or knowledge be a precondition to criminal liability.

Impetus behind the creation of the Model Drug Paraphernalia Act is attributed to the belief of the drafters of the Act that the sale and advertisement of drug paraphernalia has grown exponentially, and that this growth encourages the use and sale of illegal drugs. The drafters of the Model Act argue, in fact, that:

The availability of Drug Paraphernalia has reached epidemic levels. An entire industry has developed which promotes, even glamorizes, the illegal use of drugs, by adults and children alike. Sales of Drug Paraphernalia are reported as high as three billion dollars a year.

Prefatory note, Model Act.

As a result at least 25 states, including Idaho, have enacted legislation that incorporates some or all of the Model Act's provisions. 4

These "new generation" paraphernalia laws have not been without their constitutional challenges; however, rather than following in the footsteps of their predecessors, these newer laws have almost always been upheld by both state and federal courts alike. 5 This is especially true since the United States Supreme Court came down with its decision in Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). In that case the Court unanimously held an ordinance regulating the sale of drug paraphernalia--an ordinance far less detailed than Idaho's Act--to be not so facially overbroad or vague as to violate the constitution. While the Court in Flipside was confined to a review of a licensing ordinance, and in this case we are reviewing a criminal statute, we find the principles set forth in Flipside concerning the method of analysis for facial challenges to the constitutionality of a statute to be nonetheless applicable here. 6 We proceed, then, to analyze the Newmans' facial challenge by first examining their overbreadth claim and then examining their vagueness claim. 7


To be unconstitutionally overbroad, Idaho's Act must intrude upon a substantial amount of constitutionally protected conduct. Flipside, supra, 455 U.S. at 494, 102 S.Ct. at 1191. In making the evaluation, it is incumbent upon us to evaluate the ambiguous as well as the unambiguous portions of the Act. Id., n. 6.

Although somewhat unclear, apparently the Newmans argue that the broad list of factors in I.C. § 37-2701(bb) allows a trier of fact, in determining whether an item is, in fact, intended to be drug paraphernalia, to consider such things as alternative and unpopular lifestyles, thereby intruding upon rights of speech and association. We are not so persuaded. 8

We first note that there is a strong policy against applying the overbreadth doctrine in a facial constitutional challenge. Broadrick v. Oklahoma, 413 U.S. 601, 613-15, 93 S.Ct. 2908, 2916-18, 37 L.Ed.2d 830 (1973). One exception to this policy is in the First Amendment area. Stoianoff, supra, 695 F.2d at 1218. The only First Amendment right arguably implicated in this case is that of commercial speech. 9 However, the overbreadth doctrine does not apply to commercial speech. Flipside, supra, 455 U.S. at 497, 102 S.Ct. at 1192; Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 565 n. 8, 100 S.Ct. 2343, 2351 n. 8, 65 L.Ed.2d 341 (1980). Therefore, even if the Act were overbroad, it would be constitutional, the overbreadth doctrine not applying. Kansas Retail Trade, supra, 695 F.2d at 1347-48.

Furthermore, commercial speech in this context is not constitutionally protected, for Idaho's Act is expressly directed at commercial activity promoting or encouraging illegal drug use. "If that activity is deemed 'speech,' then it is speech proposing an illegal transaction, which a government may regulate or ban entirely." Flipside, supra, 455 U.S. at 497, 102 S.Ct. at 1192 (citations omitted). 10 Thus, we hold that Idaho's act is not facially overbroad, for it does not intrude upon a substantial amount of constitutionally protected conduct.


Even though a law satisfies the overbreadth test, it may nevertheless be challenged on vagueness grounds. The test for finding a statute void-for-vagueness on its face, and thereby in violation of due process, is whether the law is impermissibly vague in all of its applications. Flipside, supra, 455 U.S. at 498, 102 S.Ct. at 1193. That is, whether the Act is invalid in toto. Steffel, supra, 415 U.S. at 474, 94 S.Ct. at 1223. 11

We first note the underpinnings of the vagueness doctrine. In essence, three values are protected: (1) that of protecting innocent people from being prosecuted by giving them reasonable opportunity to know what is and what is not prohibited conduct; (2) that of avoiding the arbitrary and discriminatory enforcement of the law by providing explicit standards for those charged with enforcing the law; and (3) that of avoiding the delegation of basic policy matters to law enforcement personnel, judges, and juries for resolution on an ad hoc basis, with the all-too-real possibility of arbitrary and discriminatory application, by clearly defining the standards under which an individual's innocence or guilt can be determined. Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972).

Furthermore, as the Supreme Court teaches in Flipside, these standards should not "be mechanically applied." Flipside, supra, 455 U.S. at 499, 102 S.Ct. at 1193. Rather, they should be applied in light of the nature of the ordinance--whether it be a civil or criminal ordinance, whether it impinges upon the exercise of constitutionally protected rights, or whether it involves mere economic regulation. In our case, although Idaho's Act is a criminal statute, like the ordinance in Flipside, it regulates economic activity. We are, therefore, cognizant of the fact that "businesses which face economic demands to plan behavior carefully, can be expected to consult relevant legislation in advance of action." Id. (footnotes omitted). With these principles in mind we turn to Idaho's Act to determine whether it impermissibly impinges upon any of these values.

A. Definition of Drug Paraphernalia

The Newmans argue that the definition of drug paraphernalia in I.C. § 37-2701(bb) allows for an individual's conviction to be based upon the "transferred intent" of another person. Furthermore, the Newmans argue that the Act's definitions are so unclear that they invite arbitrary and discriminatory enforcement, as well as leave citizens unclear as to what is and what is not drug paraphernalia. In pertinent part, § 37-2701(bb) defines drug paraphernalia as any item "used, intended for use, or designed for use" in producing, storing, or consuming drugs.

1. Transferred intent.

The ordinance in Flipside defined drug paraphernalia as items "designed for use or marketed for use" with drugs. The Supreme Court specifically held this terminology not to be facially vague. With respect to the phrase "designed for use," the Court held that this part of the definition refers to items that are principally used with illegal drugs by virtue of their objective features--features which were designed by the manufacturer. Thus, the Court held that there was no danger of a finding of guilt by transferred intent, for the definition refers to the manufacturer's design and intent and not the intent of...

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