SAGINAW, MI — A judge has declined to dismiss a felony charge against the former Saginaw Arts & Sciences Academy student who put semen in a breath mint drop bottle and distributed to students.

A day after he heard an argument from Jordan T. Drake's attorney, Jeffrey Rupp, Saginaw County Chief Circuit Judge Robert L. Kaczmarek denied Rupp's motion to “quash,” or dismiss, a charge of adulterating a food item.

Rupp on Oct. 8 argued that "Ice Drops" breath mint drops do not fall under the Michigan statue's definition of "food."

Kaczmarek said he would review a transcript from Drake's preliminary hearing. A day later, the judge issued a one-page order denying the motion. In the order, Kaczmarek did not include a reason for his decision.

To have a judge grant the motion, a defendant must show that a district judge abused his or her discretion in ruling after a preliminary hearing on the evidence that probable cause exists for trial.

Saginaw County District Judge Terry L. Clark in July did just that after the second part of Drake's hearing, when Michael Juhasz, a Michigan Department of Agriculture food safety and inspections supervisor, testified that he considers the breath mint drops to be a food item.

In his written motion, Rupp wrote that Juhasz admitted “that he is not familiar with the product and has never dealt with it in his 26 years of experience. Without reading the complete ingredients list, he deem(ed) it a 'food product' because it is labeled a liquid breath mint and does not declare itself to be anything else.”

Rupp wrote that with the motion, Drake “only challenges the sufficiency of proof regarding” the food aspect and not that the item was adulterated.

Saginaw School District Campus Patrol Officer Eric Poole and Saginaw Police Officer Jeffrey Wenzell testified during the first part of Drake's preliminary hearing that Drake admitted to what he described as a "prank." Poole testified that an assistant principal told him to speak with Drake after a student on May 15 reported "ingesting" something given to her by Drake.

Drake's Oct. 9 trial date was postponed, and court officials have not scheduled a new date.

Saginaw School District Spokeswoman Safiya Mosley has said Drake was suspended the day of the distribution. Drake had enough credits to graduate, Mosley said, and school officials decided that his punishment would be to not be able to participate in commencement activities.

Drake, who lives at 5810 Thistle in Saginaw Township, remains free on a $5,000 personal recognizance bond.

Follow Andy Hoag on Twitter @SNAndyHoag