Court Throws Out Fine, Suspension Against Pletcher After Bute Positive

[Wandering Eyes]

In a unanimous decision, the State of New York Supreme Court, Appellate Division Third Judicial Department, has thrown out a 14-day suspension and a $2,000 fine that was originally handed down by the Commission to Todd Pletcher after a horse he trained tested positive for an overage of phenylbutazone (bute) following a July 30, 2022 race at Saratoga, and has remanded the matter back to the New York Gaming Commission for a rehearing.

The horse in question, Capensis (Tapit), finished sixth in the allowance race.

In affirming Pletcher's petition in part, and remanding the matter back to the Commission, the court acknowledged that there were “concerns regarding the fundamental fairness” of the original hearing and called the evidence presented by the New York Gaming Commission “hearsay proof.”

Both the original blood sample taken from the horse and a split sample sent to an outside lab allegedly showed that the level of the bute in the horse's system was above the specified threshold. That led to a fine and suspension from the New York Gaming Commission, which was later upheld by a hearing officer.

But Pletcher and his attorney, Drew Mollica, took the next step and brought an Article 78 petition to the New York State Supreme Court. Their argument centered around the contention that, according to the court ruling issued Thursday, “respondent (NY State Gaming Commission) failed to introduce competent evidence establishing the reliability of the testing that was conducted on the postrace samples that purportedly demonstrated the presence and concentration of bute.”

The panel agreed, noting that “the sole proof relied upon by the Commission to establish that the bute concentration from postrace samples exceed the permissible limit were letters from the New York and California laboratories, which lacked any scientific foundation or probative value.

“The letter from the New York laboratory indicated the overage in bute concentration but did not provide for the method of testing, and although the method of testing was provided in the letter from the California laboratory, neither letter gave any indication as to the reliability or general acceptance of the tests utilized to ascertain the presence and concentration of bute in the postrace samples.”

The ruling continued: “Thus, relying solely on hearsay proof in this case to establish the rule violation rendered the hearing fundamentally unfair under the circumstances presented and persuades us to remand the matter for a new hearing.”

“Mr. Pletcher is appreciative that the Appellate Division, Third Department, unanimously decided that the underlying hearing was unfair,” Mollica said. “It was unfair. That's what they said. Without the test results and lab packet, the Commission did not present any evidence of any probative value. In an era where regulators at all levels seek to overlook fairness and due process to achieve only the result they desire, it is refreshing that Appellate Court was clear that fairness and due process are important elements of the Justice System. This decision will have precedential value on other cases going forward.”

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