Change Needed In New York’s Drug Testing Policy

by | 06.01.2015 | 11:42am

The New York State Gaming Commission was none too happy with a Natalie Voss article published in the Paulick Report earlier this year calling into question the state's drug testing program under Dr. George Maylin.

One of the key points of the article – and one that was emphasized in a lawsuit subsequently filed by Hall of Fame trainer Bill Mott against New York's attorney general, State Gaming Commission members and executives, Maylin and his testing laboratory at Morrisville State College – was New York's policy of not mandatorily providing split samples of blood and urine when a positive finding is called by Maylin's lab.

It is a fundamental right in every other major racing state for a trainer accused of a positive drug test in one of his horses to have a split sample tested by a referee lab approved by the applicable state's regulatory body before prosecution for a medication violation moves forward.

New York, however, handles medication violations that have the potential to ruin a trainer's career the same way law enforcement officials treat people arrested for driving while intoxicated (DWI).

In a letter of complaint sent to the Paulick Report following publication of the aforementioned article, New York State Gaming Commission spokesman Lee Park said it “is critical to note that neither NYS law nor regulation require the production of split samples for violators' use.

“This is not unusual,” Park added. “The basic test that most people relate to regards DWI. When someone is suspected of DWI, for example, the officer doesn't secure two breathalyzer samples – one for the police to test and another for the defendant to have his/her own laboratory test.”

Park cited a 1984 U.S. Supreme Court ruling that overturned a lower court decision in California saying a suspected drunk driver's due process rights were violated because the evidence from the (breathalyzer) was discarded.

That case, California vs. Trombetta, supported the California attorney general's contention that an earlier ruling (People vs. Hitch, which said police should not discard evidence) should not apply in DWI cases. Justice Thurgood Marshall wrote the opinion for the court, which voted unanimously to overturn the California Court of Appeals ruling.

“What U.S. Supreme Court Justice Thurgood Marshall wrote in 1984 applies exactly to the Commission's equine drug testing program,” wrote Park. “'Whatever duty the Constitution imposes on the States to preserve evidence, the duty must be limited to evidence that might be expected to play a significant role in the suspect's defense…(and) must possess an exculpatory value that was apparent before the evidence was destroyed. … A dispassionate review of the … testing procedures can only lead one to conclude that the chances are extremely low that preserved samples would have been exculpatory.'”

Park's unstated contention is that Maylin's lab is faultless when it calls a positive test for a prohibited drug or an overage of a permitted therapeutic medication.

In other words, there is no need to provide a split sample to confirm the presence or quantitative analysis of a drug finding. Case closed. End of story.

That, in my opinion, is a dangerous and misguided position for the New York State Gaming Commission to take.

Split samples not only provide the accused with due process and property rights. They also may protect the laboratory and the state from the type of litigation initiated by Mott.

Why, as Mott's attorney Drew Mollica has asked, has the Thoroughbred Horsemen's Association, the organization that represents owners and trainers in New York, not pushed for a split-sample policy that gives its membership the rights horsemen have in so many other states? The New York and national THA has been silent on this matter.

Could that be because of the business relationship between Alan Foreman – general counsel to the NYTHA and chairman of the national THA – and Maylin? For years, Foreman has prosecuted cases on behalf of the United States Equestrian Federation. An expert witness hired in many of those cases is George Maylin.

Does that cozy relationship between Foreman and Maylin present a conflict of interest for Foreman? That's not for me to decide, but I, like Mollica, wonder why Foreman has not pushed Maylin to have New York treat medication cases like the rest of the United States when it comes to split samples.

The New York State Gaming Commission is staunch in its support of Maylin. Does it, however, “trust, but verify” in the same manner that Indiana Horse Racing Commission executive director Joe Gorajec trusted Truesdail Laboratory to conduct drug testing in his state?

Gorajec initiated a quality assurance program to verify Truesdail's work. It found significant deficiencies that led to Truesdail being terminated as the state's official testing lab.

If New York truly stands behind the superiority of Maylin's drug testing expertise, methodology and testing equipment, its regulators should welcome a mandatory split sample policy and be happy to create a quality assurance program similar to Indiana's.

  • Racing Fan

    New York stinks. That’s the bottom line. If anyone thinks that some of the current drug trainers aren’t cheating and using performance enhancing drugs then they are severely naive. Synthetic (and undetectable) steroids are rampant in my opinion.

    • bangem andleavem

      a certain trainer not doing all that well in the win column this meet. could be random. could be something else.

  • Tinky

    Good job, Ray (and Natalie). Investigative journalism in this industry barely existed until you developed this site, and, contrary to the beliefs of those who prefer to sweep dirty laundry under the rug, it is highly beneficial.

    Keep on prodding.

  • It is beyond belief for anyone to assume that there will be extremely little or no human error in a lab. As high as the purses and takeout are at NYRA, can’t there be a tiny percentage that goes towards split sample testing when needed?

    To Natalie, Ray and the entire Paulick Report staff, it is nice to see your work making a difference. Keep up the informative articles that will hopefully help change this industry for the better (and the bettor).

  • Hamish

    Wow, fascinating stuff. I believe I have heard before that Dr. Maylin has some interest in the company that makes the test kits that his lab uses? If so, that seems problematic, as does this cozy professional relationship between Dr. Maylin and the New York Thoroughbred Horsemen’s attorney. No brainer to change the current system and require splits.

  • Ben van den Brink

    In the first place if Iam right, maylin has NOT been acrredited by the RMTC up to now.

    Some of the testing are done at an UC, but not in New York, that was too expensive.

    Secondly the relationship between Foreman and Maylin is questionable, Not saying wrong, but arguable.

    Third any question about the testing procedures and results should be tweeked out, therefore a split sample should be a possiblity. Just out of integrity.

    But this is just IMHO.

    Thanks Ray and Nathalie, you get at least an reply.

    • Ben van den Brink

      Fourth, I would be proud as a lab, that my reports, would be confined by other lab,s and not as things went by with Indiana.

      This would be strenghten the integrity base, and not in this case seen as an attack.

      But this is just me.

      One tiny thing, what about the Asmussen case, the outcomes in the report.???

      • Ben van den Brink

        At last there is a significiant different between a breathening test, and a blood test. Blood needs to be processed first, I assume and equipment needs to be cleaned.

        But Iam not expert on this, so I can be wrong.

  • Michael Infurna

    NYRA should cut all purses by 5% and use this money to send all samples to Japan for testing.

  • Lynn

    Simply having the the option to test a split sample in New York would be the right thing to do.

    What about else where in the Mid Atlantic region?

    Any states using Truesdail lab, the lab that has trouble finding much of anything, are operating in Ostrich mode, with their heads in the sand.

    Many Mid Atlantic States, New Jersey, Maryland, and Delaware, all us Truesdail and have attorney The Vice Chair of the R.M.T.C. Alan Foreman a.k.a Snake Oil Merchant involved in regulations. Has anyone in the Mid Atlantic even bothered to see if their chosen lab Truesdail is doing a proper job? If not, than why not?

  • Jay Stone

    A split sample would be in the best interests of both the state and the supposed guilty party. As you guys stated it would also protect the state. The lack of a split sample leaves open the door for a miscarriage of justice that could endanger the career of an innocent trainer. A Thurgood ruling on DUI case from the 80’s is a bad analogy.

  • Mousse

    The NYSGC deducts $10.00 per starter from an owner’s account for testing (well over 34,000 thoroughbreds and many more Standardbreds race in NY on an annual basis). Additionally the state budget funds the lab which was recently relocated from Cornell to Morrisville for “economic” considerations with the promise of NO interruption in quality service to the integrity of the sport. Thus $ cannot be used as an explanation for not having split samples. NY uses that word (integrity) as a punch line to cover any situation in which their methodology is questioned.
    Bill Mott’s suit has uncovered a practice that has been in existence in NY for decades. Kudos to the Paulick Report for following this story. Hopefully it will lead to a more accountable system.

  • youcantmakeitup

    Good article but asking for change in rules of racing, just look at the track record of the rules makers. Very slow at best if at all. Would this article be written if a small time trainer`s name was substituted for Mott. I don’t know but Mott shouldn’t have to lawyer up to prove that mistakes were made by the usual characters,

  • Steve Zorn

    I do so hate to confuse anyone with the facts, but: (1) NYTHA has provided hundreds of thousands, if not millions, of dollars to Dr. Maylin’s lab to purchase better equipment and improve the quality of equine drug testing in New York. (2) At the same time, the State of New York has been cutting finding for drug testing. (3) NYTHA has consistently urged the Gaming Commission to requires split-sample testing. Any delay in implementing that policy is the result of inaction or negative action by the State and its entity,. the Gaming Commission.

    Phony conspiracy theories about connections between Alan Foreman and Dr, Maylin may make for good press, but have nothing to do with the truth.

    Steve Zorn
    1st Vice President
    NYTHA

    • Everett Murphy

      Good evening Mr. Zorn and I always appreciate your input to these discussions. I will itemize my response in conjunction with your comments. 1.) Why is it that you don’t know if you provided hundreds of thousands or millions of dollars? Is it because Mr. Foreman is charge of disbursing the money to the lab? With you being a tax attorney, would it not be in the best interest of NYTHA members to have a more definitive answer on how much of the member’s money was sent to Mr. Foreman’s very good friend? 2.) I assume that is a typo. If you will verify, I will comment on it. 3.) As a fan of this industry, and hopeful there is split sample testing, when will the letters and/or emails that show NYTHA urging the Gaming Commission be posted on the NYTHA web site?

      • Steve Zorn

        Dear “Everett”: You know I don’t engage with folks hiding behind false identities.

        • Everett Murphy

          Well thank you for that well thought out, lucid reply to direct questions. It is so very much appreciated. I will use the words of a person of whom I so greatly respect for his honesty and integrity; I do so hate to confuse anyone with the facts, but: you had no problem replying to my comments in the past until I put you in your place and deflated your exaggerated ego. You have been exposed as a liar in the past as well not answering questions that will shine a light on the true agenda of the NYTHA board. Here is a chance for you to get at least a sliver of honesty and integrity. When will you post the emails and letters on the NYTHA website? Why do you not know how much of the NYTHA member’s money Foreman funneled to his friend?

        • Everett Murphy

          Mr. Zorn, I have done some research on Mr. Paulicks website and it seems that you have replied to the following: Hamish, BethB117, Togahombre, CriminalType, and little hoya. So based on this alone, you are either hiding behind pseudo morality or you are a liar. Please let me know which it is.

        • 4Bellwether666

          Is your real name Barry Irwin Steve???…GUAFB!!!…

    • Tinky

      Steve,

      When was the first, verifiable date on which NYTHA “urged” that split-sample testing be required?

      • Steve Zorn

        See my comment to “Everett” below.

        • Tinky

          Ironically, given that stance, it’s your credibility, and not mine, that is brought into question.

    • Everett Murphy

      Mr. Zorn, I visited NYTHA’s website and noticed there is 2 glaring omissions. First and foremost, that you are NOT listed as a vice president, 1st or 2nd. Are you lying about being 1st Vice President or is the website wrong? If you are, as you claim, 1st Vice President, why hasn’t the website been updated. As you well know, to edit the website should take no more than 10 minutes. The other omission is that Mr. Foreman still to this day does not have his picture on the website. Instead of a picture, it merely says “Coming Soon”. Now, it appears, Mr. Foreman who has been counsel for NYTHA for many years, still does not have enough respect for the organization to supply his picture to post. He gets paid $140,000/year from NYTHA, although he doesn’t have his license to practice law in NY, and still refuses to post a picture! Does that sound like a man that is fully engaged with the organization that pays him over so much money for a part time, nearly no-show, job?

      • Andy Belfiore

        Mr. Zorn is the first VP of NYTHA, my oversight, I had not updated the website. It has been corrected. Omission of photos is also my responsibility, certainly not a refusal on Mr. Foreman’s part. And, on a personal note, I have worked with Mr. Zorn and Mr. Foreman for the past 3 1/2 years, and they have my utmost respect. They are both incredibly hard-working, dedicated and smart, and their integrity is above reproach.

        • Everett Murphy

          Mr. Belfiore, before I get to the gist of my reply to you, I would like to point out some issues with the NYTHA website. First, your own picture is not on the website. It does say it’s coming soon. How soon is soon? Or is it just another oversight by you?
          Now, lets get started. Apparently, Zorn has selected you to be his mouth piece since he has been confronted with tough questions that he is unable or unwilling to answer. This is standard operating procedure for him. I can show you a whole list of questions he has avoided or refused to answer. And this is the man(?) you have selected to be the first VP of your organization???? I am relatively sure he is not too busy writing checks to the people he owes money to to reply. Mr. Zorn’s reputation for paying is well know. That may very well explain why he has 4 low level claimers. Just a side note; Finley has nearly 100 horses. I’m just saying. Shall we stay on Zorn’s integrity that you mentioned? Ok, we will. Then we can move on to Foreman. Mr. Zorn has repeatedly recycled known lies about Finley during this election debacle. Even when shown the truth, he refuses to acknowledge it and correct himself. An example of this is when he says the board has always wanted to make everything public, which is contrary to the published rules NYTHA put out defining the procedure for the appeal. He helped write the procedures that was to make the appeal secret and then claimed the board wanted everything in the open. Staying on the integrity issue, Mr. Zorn was part of this bogus, corrupt election, then sat in judgment of himself, decided he was right, and declared Violette president. All of this (plus much much more), and he has problems paying people he owes. Are you sure he deserves to be dubbed VP, much less has any integrity. It is not a huge leap to believe this is pay back from Foreman and Violette for being their mouth piece and validating a rigged election. You do the math.
          Foreman!! This is a man that actually said in the hearing that he is a man that is just trying to scratch out a living. That is his quote!! How many organizations is he head of where he makes $140,000/ year? NYTHA, THA (much more than $140k), boards, kick backs, slush money, incestuous relationships with corrupt or incompetent law firms. The list goes on.
          Well the day of reckoning is quickly approaching for both. They each held their right hand up and swore to tell the truth. At that point they were under oath to tell the truth. They did it thinking it was a big joke that they rigged and election and got to judge themselves. This is where it gets interesting. Now that Finley is taking this to a real court, perjury is very much on the table. Zorn, Foreman, Gallagher, Violette, and the rest of the gang that couldn’t rig an election will be playing with the big boys. When this goes to court, Im sure the smugness and self assuredness will disappear quickly.
          I await your reply, Mr. Belfiore, as well as your picture on the website. You may want to get it up there quickly. Possibly before the Supreme Court rules this election was a sham and it needs to be redone.

        • Everett Murphy

          Ms Belfiore, I would like to sincerely apologize for addressing you as Mr. Belfiore. I have never met you and since your picture was was not posted, I did not know you were a lady. Again, I apologize for my mistake.

          Had your picture been on the website, I would have addressed with the proper salutation. I think this situation is systematic of the lack of information NYTHA provides it’s members. The travesty that you refer to as an election could have been avoided had NYTHA done what they were tasked to do. Namely, provide up to date information to all. Rather than working so hard to exclude members from voting, NYTHA would have been better to put the same effort into including members.

          Now that the back room deal making Zorn the 1st VP is done, I’m sure the drapes will be shut and no information will be forthcoming. However, that will be short lived because the NY Supreme Court will get it right. Should Zorn and Foreman be charged with perjury, will they be immediately removed from NYTHA? I think that is a scenario that is likely and must be considered prior to the redo of the election

        • Everett Murphy

          Ms. Belfiore, I have recently read an email that states you are the new executive director of nytha. Can you please tell the new director of communications to update the website to reflect the change.
          Also, as an interested party, can you explain to me the selection process of how you became the executive director? Was the position posted for others to submit resume’s? If so, how many applied and what was the procedure for the board to decide on you being the most qualified?
          Lastly, for this post anyway, what is your relationship with Mr. Violette, both professionally and personally? Please be assured that there are more, many more posts and comments regarding this subject matter.

    • Ben van den Brink

      Cornell was taken off duties, because they needed large sums of money to invest. Now you are claiming that money went to maylin.

      My conclusion very bad spended money and not one on integrity. accredition means nothing except a bunch of papers.

      Cornell should be dooiing this job after all, because these kind of bad publicity will do much more harm, than anyone is realizing. How do you get owners out of the game, how do you lose faith in an organization and much more

    • Danny Gonzalez

      What planet are you from Zorn Maylin and Foremen have been tied together more times than a you can count especially in Maryland. The Inaction of the Gaming Commision happens because They are biased and need reasons to fault trainers and call them cheaters in the press. When confronted with the fact that several drug withdrawl times are wrong they have done nothing. The Horsemens association has done nothing also. Now there deciding to bark about split samples when they leave there members high and dry when NY is Violating there due process rights Alan Foremen just likes to keep his job is he not effective in representing horsemen, Only when there his friends. Where was the Horsemens Association when Dutrow got screwed for a positive that wasnt a positive and has been verified by the UC davis study . The simple solution is we need change at all levels in racing starting from the top. Maylin is worthless he has been showed by the data to be wrong more times than he right. when you want to make changes in racing dont go to the Monkeys cage to get expert opinions go to real experts who want to do the right thing

    • Everett Murphy

      Zorn, here is a comment to Ms. Belfiore for your review. Please feel free to comment if you so desire.

      Ms. Belfiore, I have recently read an email that states you are the new executive director of nytha. Can you please tell the new director of communications to update the website to reflect the change.

      Also, as an interested party, can you explain to me the selection process of how you became the executive director? Was the position posted for others to submit resume’s? If so, how many applied and what was the procedure for the board to decide on you being the most qualified?

      Lastly, for this post anyway, what is your relationship with Mr. Violette, both professionally and personally? Please be assured that there are more, many more posts and comments regarding this subject matter.

      • Steve Zorn

        Hi Terry. Long time no rant. Last time I looked, Jim Gallagher was still NYTHA’s executive director. Jim plans to retire at the end of the Saratoga meet, and at that time, the NYTHA Board of Directors will take appropriate action. I believe that renders the rest of your comment moot.

        • Everett Murphy

          Oh poor Mr. Zorn. My heart goes out to you. It really does. It would be perfect for you and your conspiracy if I were Terry. Then you would be able to attribute all that I have exposed about you to a disgruntled election loser. But, and its a big but, I am not Terry. You already know I am not Terry and Mr. Paulick has already assured you that I am not Terry. So, with that said, you will need to deal with the fact that you are being exposed for what you really are by someone that knows how to do research online.
          Secondly, I read an earlier post by you that said you do not respond to people that do not use their real name. Since you responded to my question, I can only come to the conclusion that you know I am using my real name. If you know I am using my real name, then why would you call me Terry? If you thought I was really Terry and I posted as Everett I would not being using my real name and you would not have replied. So, please tell me if you think I am Terry posting as Everett so that I can call you a liar because you said you do not reply to people who don’t use their real name. I have learned how to use circular logic from how you and your gang ran the “election”.

  • Happy Horse

    I think the potential conflicts of interest require much further examination. As an NY licensee, I have always been concerned by the fact that NYTHA pays the General Counsel but also pays dues to the THA , a separate organization that is run by the General Counsel. I assume that the THA is a non profit and files a 990 but I am not certain since the THA has no website nor do I recall getting communications from THA. It would be interesting to see who is compensated by the THA .

    • Everett Murphy

      A L A N F O R E M A N

    • Shiloh

      Alan foreman has made the THA a for-profit and thus is not required to produce a 990. The individual states though file 990’s . Convenient is it not?

      • 4Bellwether666

        Alan Forearm is one slick ***…

      • Lynn

        Alan Foreman is the Vice Chair of the R.M.T.C (Racing Medication Testing Consortium). He is the one who push many wrong thresholds and wrong withdraw times to racing commissions all over the country.

      • Happy Horse

        Thank you – was not aware of this. This information raises my concern to a higher level. Ray – perhaps you or your staff can take a look at this. Would be very interested in any information about the THA. I am also curious as to who funds the RMTC . Any readers know how the RMTC is funded and who is compensated by the RMTC ?

  • CANYMAN

    UNREAL!!!POOR RICK DUTROW GETS A 10 YEAR BAN!!!
    Y?I TRUELY DONT UNDERSTAND!!THERE ARE BARNS 10 TIMES WORSE THEN RICK DUTROW!!!
    MIKE GILL MIGHT BE RIGHT THE WHOLE DAM SPORT MIGHT BE FIXED!!
    THE JOCKEYS AND TRAINERS PROBALLY ALL KNOW THE WINNER BEFORE THE CARD EVEN BEGINS!!!
    HORSE RACING SHOULD BE CALLED FIXED LIKE WWF!!!
    ONE MORE THING WHERE IN THE HELL IS THE FBI AT!!I WILLING TO WAGER THAT THERE IS MORE CORRUCPTION IN NEW YORK TRACKS THEN AT A PISS POOR TRACK LIKE PENN NATIONAL!!!THERE ARE LITTLE THIEFS EVERYWHERE GIVING THE PUBLIC THE FS!!!!!

  • Richard Holmes

    Is this really an issue? In other states, how many times has there been a positive test, where the split sample showed something different? I would bet it is extremely rare to say the least. It is probably so rare that there is no reason to even do it. Maybe Ray could answer that question as to how many times, if ever, has a split sample exonerated someone.

    • PeteN

      I won’t pretend to be any kind of expert but the drug policy of the tour company I used to drive for stated that in the case of a positive drug test a 2nd (ie split) sample could be tested by a different lab and if negative then the negative became the official result

    • Ben van den Brink

      I am figuring the Indiana case. Indiana changed labs, after a missed test in his formal lab.

      • Richard Holmes

        Yes, I am aware of that. Those were cases of false negatives. I am wondering about false positives.

    • youcantmakeitup

      If you believe what other horsemen at Delaware have said, Juan Vazquez has been exonerated after splits were tested. Twice. Bad tests were for steroids.

      • Lynn

        Truesdail lab, the lab that fails to find many things, does the majority of the testing in the Mid Atlantic region, currently they are doing the testing in Maryland, New Jersey, Delaware, and West Virginia. They also do testing for states in other parts of the country.
        Indiana did quality assurance and found that Truesdail was not doing their job and fired them.
        Has any of the other states that use Truesdail check to see if they are doing their job?

      • Richard Holmes

        Fair enough. I’m not claiming that it would be impossible to have a false positive test. I’m just saying that it is probably extremely rare. I was wondering if Ray had any estimate on the frequency of false positives, where the person ended up being exonerated by a split sample.

    • Shiloh

      It’s not that the lab finds a different drug so much as finding it at a smaller or lower amount. It happens more frequently than you think..

  • Ben van den Brink

    To compare blood testing with breathe testing seems to me, like apples and crapes.

    Bloodtesting is much more suspecting towards human faults. There a many more decision points in bloodtesting and accuracy is very important.

  • 4Bellwether666

    While they are @ it a change in innovative/hip leadership would go a long way also…

  • Janet Carbellio

    Maylin’s Lab has twice failed certification,he buys ELISA kits for testing from his own company. He had to leave Cornell and is past his sell buy date. We need USADA to monitor all the labs,most of which are under funded and not fit for purpose.

  • Shiloh

    Fun fact: Foreman started his career at the Maryland Racing Commission. Maryland allows split samples. Why hasn’t Mr.Foreman pushed harder on behalf of the NYTHA to get this done. The cost is minimal: pennies for another blood tube , pennies for an additional plastic cup to hold urine and a freezer to hold the samples. The trainer foots the bill for sampling at a different lab: this is the industry standard.

  • Happy Horse

    Does anyone know if Terry Finley is pursuing a challenge to the findings of the NYTHA Board that the election should be upheld ?

    • Everett Murphy

      Yes, Finley has filed a lawsuit in the Supreme Court of New York challenging the boards decision. All of the sworn testimony will now come into question. There is going to be far reaching consequences for the ones that lied, cheated, or rigged the election and then swore it was fair and truthful. My bet is that NYTHA will be taking applications for a new in-house lawyer, president, and 1st VP.

  • brian monte

    Ray,
    I realize I am weighing in late on this article but I wanted to offer up a meaningful response that you (and Bill Mott) might give to Mr. Park and the NY Commission regarding the ‘Trombetta’ ruling. I apologize if this is lengthy.

    In my opinion, if anything supports Bill Mott’s case, it is the very facts behind the California v. Trombetta ruling on which Mr. Park and the Commission seem to rely.

    There are two extremely important facts that are not included in the quoted parts of the Trombetta ruling. One because it was not important to the question of law in that particular case and the other because it came about later.

    1) In California at the time of the original Trombetta DUI charge, people accused of DUI by an officer had a choice of taking a BREATH, URINE OR BLOOD TEST.

    The case that went to the Supreme Court was ONLY about whether the police should have been required to save the breath sample. Had Trombetta taken a blood or urine test, that sample would have been preserved and could have been used and tested by his defense attorney to help prove his innocence if the sample showed that the original results were incorrect. Only the breath samples are not preserved. So any driver could have a sample preserved for use in their defense as long as they chose urine or blood. Today I believe only breath and blood can be chosen.

    2) Because of the Trombetta case, California passed a law even before the Supreme Court ruled on the case, that states that not only does a driver have a choice between a breath test and a blood test (at the time also urine), but because breath samples are not preserved, the arresting officer is now REQUIRED to tell a person accused of DUI that they have a choice of tests and that only the blood test will create a sample that will be preserved, if needed, for future use in the drivers defense.

    This law created what is known as the Trombetta advisement because the state realized how important it is that a driver know that they have the option to take a test that will preserve a sample. And remember, they created this law only to make sure drivers were informed of their rights. The right to have a blood test that would create a sample that would be preserved ALREADY existed.

    So basically, Mr. Park is referring to a Supreme Court case that says what he wants to hear but, in fact, is (a) based on one California law that already gives drivers rights to have a blood test and sample that can be preserved if they choose and (b) resulted in California passing a second law requiring officers to make sure drivers are aware of that right.

    Those are two laws that directly give California drivers the very right that Mr. Park says trainers in New York do not have. That case was strictly about officers not preserving breath samples and whether or not they destroyed them in bad faith. It had nothing to do with the fact that those same drivers had a right to a blood or urine test that would have produced a sample that would have been preserved.

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