Pubdate: Sat, 04 May 2002 Source: Rapid City Journal (SD) Copyright: 2002 The Rapid City Journal Contact: http://www.rapidcityjournal.com/ Details: http://www.mapinc.org/media/1029 Author: Associated Press BAN ON SALES OF DRUG ITEMS HOLDS PIERRE (AP) - The state Supreme Court has upheld the constitutionality of South Dakota's law banning the sale of items designed primarily for illegal-drug use. The law gives sufficient notice about what conduct is prohibited, the high court said in a unanimous opinion that upheld the convictions of two Rapid City people. Thomas Holway, co-owner of the Video Blue adult bookstore, and his ex-wife, Ellie Holway, each were convicted last year on three counts of delivering drug paraphernalia. They sold pipes designed for smoking marijuana to three undercover law officers. Both were sentenced to 90 days in jail and four years in prison, with the prison sentences suspended. Before the store started selling pipes and other drug paraphernalia, the Holways had contacted Pennington County State's Attorney Glen Brenner and a state prosecutor to ask if selling the items was legal. Brenner read them the law and said they could be prosecuted if it could be proven the items could be used for smoking marijuana. Todd Love, a drug prosecutor in the attorney general's office, told them that state law prohibits the delivery of drug paraphernalia. The Holways argued that the law is unconstitutionally vague and would encourage unequal enforcement. But the Supreme Court said the law has objective standards for determining what items are drug paraphernalia. South Dakota's law also is based on a model law that has been upheld in many other states. The law prohibits people from delivering drug paraphernalia when they know or should know that the items will be used to contain, conceal or use illegal drugs. Another section of law defines drug paraphernalia as pipes and other items that are primarily used or intended for carrying, concealing or using drugs. It includes a lengthy list of such banned items. The Holways argued the state did not present enough evidence to convict them. They contended that they cannot be found guilty because they did not intend that the items be used with illegal drugs and did not know of the items' drug-related nature. Signs on the store's display cases said: "All paraphernalia sales are only sold with the understanding that the purchaser has only legal intent for its use." The Supreme Court said the law bans objects primarily used, intended or designed for drug use. "The Holways cannot escape liability by pretending to ignore the most common use of such objects," Chief Justice David Gilbertson wrote. Because the Holways called county and state prosecutors before they sold the items, it would be difficult to believe they did not know the items were drug-related and illegal, Gilbertson wrote. In addition, their comments to undercover officers and the prosecutors indicated the Holways knew the items were drug paraphernalia, Gilbertson said. "The facts laid out above give sufficient reason for a jury to believe, beyond a reasonable doubt, that not only were the objects drug paraphernalia, but that Thomas and Ellie knew or reasonably should have known of the objects' drug-related nature," the chief justice wrote. - --- MAP posted-by: Alex