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In a photo after his sentencing in 2013, Alfredo Vargas is escorted to the county jail after being sentenced to 10 years with five years suspended for the conviction of attempted fetal homicide. The South Dakota Supreme Court has overturned the conviction because of .

The South Dakota Supreme Court has reversed the attempted fetal homicide conviction of a former Rapid City man accused of spiking his girlfriend's beverages with an herb to try to induce an abortion.

But Alfredo Vargas’ attorney isn’t sure if the reversal means a new trial for her client.

Vargas is serving a 5-year prison sentence after a 7th Circuit Court jury in 2013 found him guilty of lacing his girlfriend's drinks with an mint-flavored herb that in large quantities can cause an abortion.

The substance authorities found in the drinks is known as Pulegon, an essential oil extract of penny royal sometimes used to flavor toothpaste.

The justices ruled the circuit court made mistakes in the case by giving incorrect instructions to the jury and letting jurors listen to a phone call between defendant Vargas and his girlfriend.

Vargas' girlfriend became suspicious of her drinks and had law enforcement test them. The mother, Lisa Komes, gave birth to a healthy boy in October 2010.

Defense attorney Jamy Patterson, of Rapid City, said Thursday she had not been able reach Vargas to tell him of the court’s ruling, and said she had already filed an order to have him released.

The court’s ruling reversed the conviction, but didn’t order a new trial, she said.

“It has been reversed, and there’s a question of what that means legally,” Patterson said. “The state has told me they’re going to retry it. They may change their minds. We’ll see.

“From the beginning he (Vargas) has always believed this was an unjust prosecution, so we’ll see what happens this time,” Patterson said.

Pennington County Deputy State’s Attorney Scott Roetzel, who prosecuted the case, was out of town this week and unavailable for comment. State’s Attorney Mark Vargo said on Thursday he had not read the court’s decision and wasn’t ready to officially speak on the possibility of new charges.

If charges are filed again, it will mark the third time Vargas has faced trial in the case. In 2012, Roetzel dismissed a similar charge after a circuit court judge rejected his expert witnesses.

Roetzel filed the new charge in October 2012.

Vargas had faced up to 25 years in prison on the attempted fetal homicide conviction. Then-Circuit Judge Janine Kern had sentenced Vargas to 10 years, with five years suspended.

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The Associated Press contributed to this story.

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