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.