Zero tolerance for drugs in horses OK, Justices rule

By Steve Korris | Apr 16, 2010

CHARLESTON – West Virginia's zero tolerance policy for drugs in race horses doesn't violate the state Constitution, the Supreme Court of Appeals ruled on April 5.

The Justices upheld a decision stripping Fred and Sharon Johnson of a $225,000 prize.

Their horse, Eastern Delite, had apparently won the seventh race in the West Virginia Breeders Classic at Charles Town Racetrack in 2007.

Examination after the race revealed a tiny amount of caffeine in the horse.

Track stewards disqualified Eastern Delite under a West Virginia Racing Commission rule that bans "any drug substance" foreign to the natural horse.

The stewards redistributed the prize.

The Johnsons appealed to the racing commission, and lost. The Johnsons appealed to Jefferson Circuit Court on constitutional grounds, challenging zero tolerance as arbitrary, capricious and irrational.

Their expert testified that caffeine didn't affect Eastern Delite's performance. The expert testified that the horse ingested the equivalent of a teaspoon of coffee.

The expert theorized environmental contamination, suggesting somebody spilled a drink and the horse lapped it up.

Circuit Judge David Sanders affirmed disqualification last year, finding no constitutional defect in zero tolerance.

The rule takes uncertainty out of the testing process and eliminates litigation in tests with positive results, he wrote.

Determining a drug's impact on a horse would be impractical, he wrote.

The Johnsons made a final appeal to the Justices, who turned them down.

Their unsigned opinion stated that in 1949, their predecessors affirmed disqualification of race horse Sunset Boy and redistribution of a prize at Charles Town.

That Court held, "It is evident that the evil sought to be prevented was to avoid either stimulating or depressing a horse, because whatever the effect, the awarding of the purses, and the wagers on the results of the races, would be affected."

The Justices also relied on a 1951 decision in the case of Lucky Linda, who forfeited a prize at Wheeling Downs.

They rejected the idea that a drug shouldn't count if it doesn't affect a horse.

That approach, they wrote, would result in endless litigation.
"In the end, the winner of a horse race would not be determined by the speed of the horses on the track, but by the dexterity of experts and lawyers in the courtroom," they wrote.

Assistant attorney general Benjamin Yancey represented the stewards for Attorney General Darrell McGraw.

James Campbell of Leesburg, Va., represented the Johnsons.

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