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September 09, 2013 05:00 PM

SD Justices Will Hear Synthetic Drug Appeal

Goodwin, SD

The South Dakota Supreme Court will hear the appeal of a Deuel County man convicted on synthetic marijuana charges.

Jason Toben, 40, of Goodwin was the first in the state arrested, convicted and sentenced to prison after the legislature passed an emergency law in 2012 making the drugs illegal. But Toben argues that he didn't know the specific substance he was selling was illegal.

Toben and Phillip Plunkett, who owned a small bar in the small Deuel County town of Goodwin, made state headlines a year ago. According to the South Dakota Attorney General's Office, they were the first arrested for selling synthetic drugs to undercover agents just six days after Governor Dennis Daugaard made the substances illegal.

Toben is now serving a nine-year prison sentence for the crime but in just three weeks, the South Dakota Supreme Court will hear an appeal from his attorney.

Toben's attorneys argue that he was the 'middle man' selling the synthetic marijuana at the counter of the Chicago Avenue Bar for Plunkett. They argue Toben did not know the drug he was selling contained the 'illegal component’ and that he was told it was 'okay to sell.' The package even 'said it was legal' in all 50 states.

Synthetic drug manufacturers often change the chemical make up of the substances to get around the law.

The jury was told that someone doesn't have to know something is illegal to be convicted; they simply have to commit an illegal act to be guilty of the crime.

Prosecutors said at Toben's sentencing that he had 'followed the legislation' and knew that synthetic marijuana was going to become illegal.

Now it’s up to the Supreme Court to decide if the sales that happened in the small Goodwin bar in the Spring of 2012 should keep Toben behind bars for the rest of his nine-year prison sentence.

The South Dakota Supreme Court will hear arguments in Toben's case on October 1 during its fall term of court in Spearfish.

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