A court hearing was set Friday to determine whether a synthetic drug trafficking charge against the owner of The Botany Bay on Winchester Road will be upgraded from a misdemeanor to a felony.
Ginny Saville, 43, was charged with trafficking in synthetic drugs and possession of drug paraphernalia after police raided The Botany Bay, a smoke shop, this summer along with several other Lexington stores suspected of selling synthetic marijuana.
According to court documents, police found more than 7 pounds of synthetic cannabinoids at The Botany Bay.
Trafficking in synthetics is a misdemeanor in Kentucky unless it is a second or greater offense, in which case it becomes a felony. Saville pleaded guilty to trafficking in synthetics and possession of drug paraphernalia in April 2011.
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When police charged Saville following the Aug. 20 raid, the citation indicated the charge was supposed to be a felony. However, it was incorrectly entered in the court's computer system as a misdemeanor, first assistant County Attorney Lee Turpin said.
The county attorney's office filed a motion to amend it to a felony.
Saville's attorney, Tucker Richardson, responded with a motion that the charge should not be Saville's second offense because she was not adequately advised of her rights — such as a right to fair trial, to confront witnesses and to appeal — before she pleaded guilty to the first offense last year.
A hearing on the motions was scheduled for Oct. 30.
Meanwhile, the search warrant authorizing the Aug. 20 raid was found in the Fayette District Court Clerk's Office late last month. It was unaccounted for at an arraignment hearing for Saville and several Botany Bay employees Sept. 19.
According to the warrant, Lexington police made two undercover buys of suspected synthetic drugs at Botany Bay before the Aug. 20 raid.
At one of the buys, date unspecified, police obtained a substance called Moon Glow. At the other, on July 23, an undercover officer asked for Black Magic, a brand of synthetic marijuana, and was given a generic package labelled "ZEF Potpourri Blend" instead.
Police sent the sample to the Kentucky State Police laboratory; the substance was identified as a synthetic drug commonly known as XLR-11, according to the warrant. The warrant did not specify whether the substance obtained in the first buy was tested.
The chemical compound in XLR-11 has been banned in five states, but it does not fit into the classes of cannabinoids specifically banned in Kentucky. However, this spring, a provision was added to Kentucky's synthetic drug laws to prohibit "any other synthetic cannabinoid or piperazine that is not approved by the United States Food and Drug Administration, or if approved, which is not dispensed or possessed in accordance with state and federal law."
Police have said the drugs seized from The Botany Bay fall under that provision. Saville's court case could be among the first to test the constitutionality of the provision, which some have said is too broad.