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.

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