A state hearing officer has recommended overturning the 15-day suspension of Thoroughbred trainer Rick Dutrow Jr. for allegedly using a prohibited medication on a second-place finisher at Churchill Downs on Oaks Day, the day before Dutrow-trained Big Brown won the Kentucky Derby.
However, the recommendation might not stand. Racing authorities are challenging the findings, which might have been made on faulty information about the testing.
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But the Kentucky Horse Racing Commission is not scheduled to take up the matter until Oct. 27, two days after Dutrow will saddle Big Brown in the Breeders' Cup Classic at Santa Anita in California.
Salute the Count, the gelding that tested positive for the Class B prohibited medication clenbuterol, is a candidate for another championship race, the Breeders' Cup Turf Sprint.
According to the racing commission, Salute the Count had 60 percent more clenbuterol in his system than is allowed. The drug, which affects the pulmonary system and has the potential to affect performance, can be used at normal doses up to 72 hours before a race.
Hearing officer Jim Robke said, in a ruling mailed Tuesday, that the commission had not met its burden of proof, even though both labs that tested Salute the Count's blood samples found basically the same level of the drug.
Robke's ruling says the test results were for "plasma" and the commission's threshold is for "serum."
There was no evidence presented to explain the difference and its relevance, Robke said.
But Dr. Mary Scollay, the racing commission's veterinary medical director, said the reports stating that the tests were done on plasma were incorrect.
"They were done in serum," Scollay said. "Both lab directors are confirming they were serum."
Both serum and plasma are the fluid portion of blood, but the difference is in the clotting factors. Plasma is from uncoagulated blood and still contains clotting factors; the clotting factors have been removed from serum.
Scollay said she was not sure what difference, if any, that would have made in the test results.
Lisa Underwood, executive director of the Kentucky Horse Racing Commission, issued a statement Friday saying the staff has reviewed Robke's recommendations. "We have concluded that we have a strong basis for filing exceptions to the recommended order and we intend to do so promptly," Underwood said.
Dutrow's attorney, Frank Becker of Lexington, did not return a call for comment. Dutrow did not attend the Aug. 28 hearing on his suspension.
He told The Associated Press on Friday that he had been willing to serve the 15 days but not before the Breeders' Cup championships, which are Oct. 24-25.
"I just told these guys, 'I don't care what you do, but I don't want any days before Breeders' Cup,' " Dutrow told the AP. "My lawyers looked into it. They called me and said, 'Rick, we can beat this.' "
Kentucky racing stewards suspended Dutrow on June 25 and disqualified Salute the Count, placing him last and ordering all purse money returned.
However, Dutrow appealed and the penalties have been suspended. He can continue to race until the matter is resolved.
Dutrow's appeal was originally scheduled to be heard July 29 but was delayed until Aug. 28.
Dutrow has said the overage was "just a mistake that happened, but it's not as big a deal as everyone is trying to make it out to be."
At its Oct. 27 meeting, the commission could accept, reject or modify the hearing officer's ruling, or it could send it back to him for further review.
Either the staff or Dutrow could appeal the commission's ruling to Franklin Circuit Court.