(dissenting)—Christopher Brown was convicted of possessing two Valium tablets. These tablets contained diazepam—a controlled substance. Diazepam is listed in RCW 69.50.210(c)(7) as a controlled substance. Valium is not. He contends the designation of diazepam and not Valium in the controlled substances act fails to satisfy the procedural due process requirements secured by the Fourteenth Amendment. I agree and must dissent.
A basic principle of due process is that a criminal statute is void for vagueness if its prohibitions are not clearly defined. Grayned v. Rockford, 408 U.S. 104, 33 L. Ed. 2d 222, 227, 92 S. Ct. 2294 (1972). Procedural due process requires that citizens be given fair notice of conduct forbidden by a penal statute. State v. Dougall, 89 Wn.2d 118, 121, 570 P.2d 135 (1977); State v. Martinez, 85 Wn.2d 671, 675, 538 P.2d 521 (1975).
The basis of due process is that all are entitled to be informed of what the State commands or forbids. Bellevue v. Miller, 85 Wn.2d 539, 543, 536 P.2d 603 (1975). The essential element of due process is fair warning. Grant Cy. v. Bohne, 89 Wn.2d 953, 955, 577 P.2d 138 (1978). Common intelligence is the test of what is fair warning. State v. Reader's Digest Ass'n, 81 Wn.2d 259, 273, 501 P.2d 290 (1972).
The statutory language must convey a sufficiently definite warning of proscribed conduct when measured by common understanding and practice. State v. Jordan, 91 Wn.2d 386, 389, 588 P.2d 1155 (1979). The test is whether a person of common intelligence can, with reasonable cer*851tainty, determine what substances are designated or scheduled as controlled substances. State v. Dougall, supra at 121; In re McCrea, 28 Wn. App. 777, 781, 626 P.2d 992 (1981).
A law that fails to provide fair warning is void for vagueness. Seattle v. Drew, 70 Wn.2d 405, 408, 423 P.2d 522, 25 A.L.R.3d 827 (1967). A conviction under an unconstitutionally vague statute is invalid.7 State v. Zuanich, 92 Wn.2d 61, 63, 593 P.2d 1314 (1979); State v. Martinez, supra at 680.
The Legislature has decided that certain drugs shall be deemed controlled substances and that possession of those drugs, without a prescription, shall expose one to felony charges. Its decision to list these drugs only by their chemical names renders the schedules incomprehensible to anyone untrained in either medicine or pharmacology. For example, the controlled substances act lists, among others, oxycodone, chlordiazepoxide, diazepam, and secobarbital sodium. This list does not provide a person of common intelligence fair notice or warning of what drugs are designated as controlled substances. However, if the same list *852included Percodan, Librium, Valium and Seconal,8 fair notice would have been given in terms understandable by the average person.
Technical statutory language satisfies due process only when the words or phrases are understandable by those expected to use and apply the language. State v. Reader's Digest Ass'n, supra at 274. Chemical base compound names are not understood by the average person. Administrative convenience is not a proper substitute for fair warning. Trade names (not street names) provide that sufficiently definite warning which due process requires.
I recognize the only legal way one may come to possess a controlled substance is through a valid prescription. However, I also recognize that a number of citizens will unwittingly offer their legally obtained prescription drugs to a family member or a close friend who is suffering from similar symptoms. Because intent is not an element of the unlawful possession of a controlled substance, this conduct exposes the innocent recipient to felony charges. State v. Cleppe, 96 Wn.2d 373, 378, 635 P.2d 435 (1981).
The point of my analysis is that a citizen who possesses a Valium tablet should be able to go to the laws of this state, whether the Revised Code of Washington or the Washington Administrative Code, and find whether Valium is a controlled substance. Under the present statutory scheme, even consulting a lawyer would be fruitless because determining whether Valium is a controlled substance cannot be accomplished by going to the written laws of our state or the regulations thereunder. A citizen would need to inquire of his family doctor or pharmacist, not a lawyer, to determine that Valium contains diazepam.
In State v. Dougall, supra, the Supreme Court concluded it is unreasonable to expect an average person to continu*853ally research the Federal Register to determine what drugs are controlled substances. Likewise, it is unreasonable to expect the average person to consult a doctor, pharmacist, or nonlegal reference material to determine what trade names are controlled substances.
Because Mr. Brown was convicted of violating a constitutionally defective statute, I would reverse his conviction and dismiss the charges against him.
Reconsideration denied February 25, 1983.
Review denied by Supreme Court April 18, 1983.
Mr. Brown challenged the constitutionality of the controlled substances act in an April 1, 1981, pretrial motion. He alleged the ordinary person of common understanding is not served with notice of what conduct is proscribed by the statute. Under the controlling case law at that time, that allegation was sufficient to establish standing. State v. Zuanich, 92 Wn.2d 61, 63, 593 P.2d 1314 (1979). Under Zuanich, a defendant has standing to challenge a statute as vague regardless of his personal conduct. See Coates v. Cincinnati, 402 U.S. 611, 29 L. Ed. 2d 214, 91 S. Ct. 1686 (1971); Void-for-Vagueness—Judicial Response to Allegedly Vague Statutes—State v. Zuanich, 92 Wn.2d 61, 593 P.2d 1314 (1979), 56 Wash. L. Rev. 131 (1980). The Zuanich rule was in effect during Mr. Brown's trial, the filing of his notice of appeal, and his appellate argument before this court on September 13, 1982.
On November 10, 1982, our Supreme Court changed the standing rules in State v. Sherman, 98 Wn.2d 53, 653 P.2d 612 (1982). Under Sherman, a defendant seeking to challenge a statute as void for vagueness must claim the statute is vague as to his own conduct. Relying on Sherman, the majority states Mr. Brown lacks standing. I do not agree. The issues raised by Mr. Brown should be evaluated by the rules in effect at the time of his trial. To retroactively apply Sherman would only penalize Mr. Brown because of the length of the appellate process.
Percodan is manufactured by Endo, Inc., and contains oxycodone hydrochloride. Librium is manufactured by Roche Products, Inc., and contains chlordiazepoxide. Valium is manufactured by Roche Products, Inc., and contains diazepam. Seconal is manufactured by Eli Lilly & Co. and contains secobarbital sodium. Physicians' Desk Reference (36th ed. 1982).