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Attorney General Marty Jackley

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Synthetic Drug Conviction Upheld by South Dakota Supreme Court


FOR IMMEDIATE RELEASE :     Friday, January 31, 2014
CONTACT:  Sara Rabern (605)773-3215   

Synthetic Drug Conviction Upheld by South Dakota Supreme Court

PIERRE, S.D – Attorney General Marty Jackley announced today that the South Dakota Supreme Court has unanimously upheld a synthetic drug conviction on possession and distribution of synthetic marijuana.

“Synthetic drugs pose a substantial health and public safety risk especially to minors,” stated Attorney General Marty Jackley.  “The intentional mislabeling of dangerous chemicals that are neither tested by the FDA nor monitored by either a physician or a pharmacist remains a public safety and health concern in South Dakota.”

The Chicago Avenue Bar in Goodwin, South Dakota, openly sold synthetic drugs including after the change in South Dakota law making possession and sale of synthetic drugs a felony.  During one of law enforcement’s two controlled purchases of synthetic drugs, Defendant Jason Toben was asked, “if the pending change in law was going to affect their business” and sale of synthetic drugs.  Defendant Toben replied, “They are not going to slow us down.”  The mislabeled packaging on some of the synthetic drugs included “100% cannabinoid free-DEA compliant” and “legal in 50 States.  Does not contain any banned substances.”

Toben was arrested and charged with two counts of an unauthorized drug possession and one count of an unauthorized drug possession or distribution, and one unauthorized drug possession or distribution in a drug free zone.  In September of 2012, a jury convicted Toben of all four counts.  Toben argued that the trial court failed to properly instruct the jurors concerning his knowledge of the illegal substances.  The South Dakota Supreme Court opined that “While the State never yields the burden of proving knowing possession, one cannot consciously avoid learning the nature of a substance to later assert ignorance of its nature.”  Toben was sentenced to nine years on the first three counts, with five years suspended, and a consecutive sentence of nine years with four suspended on the fourth count.