Trainer Doug O'Neill could face a suspension and fine stemming from a 2010 finding in California that a horse in his care had an elevated level of total carbon dioxide in his blood system.
O'Neill, the winning trainer in the May 5 Kentucky Derby Presented by Yum! Brands (gr. I) with I'll Have Another , has had three prior TCO2 violations -- two in California and one in Illinois. He served a 15-day suspension in connection with the Illinois case.
An administrative hearing into the most recent case, involving a horse named Argenta at Del Mar in August 2010, has been completed, according to the California Horse Racing Board. Officials refused to say, however, if the hearing officer in the case has issued a ruling.
If a decision has been rendered, commissioners from the CHRB would meet in executive session during its regularly scheduled meeting May 24 at Betfair Hollywood Park to review the findings.
O'Neill is accused of "milkshaking," the illegal practice of giving a horse a blend of bicarbonate of soda, sugar, and electrolytes. The mixture is believed to reduce fatigue and enhance performance. Argenta, who ran out of the money in the sixth race at Del Mar Aug. 25, was found to have a TCO2 level of 39.4 millimoles per liter of TCO2, according to the equine testing laboratory at the University of California-Davis. The result was well above the 37-millimole maximum.
O'Neill adamantly denies the charge.
"I swear on my kids' eyes I never milkshaked a horse,'' the gregarious trainer said during a telephone news conference May 10. "We had some people in charge of California racing I think didn't like a few of us that were doing well. Anyway, it's all being heard by the courts and I'm very confident everything will be fine.''
According to Robert Miller, the CHRB's general counsel, no matter what the board decides to do, a suspension against O'Neill would not go into effect before the conclusion of the Triple Crown campaign. I'll Have Another is being pointed to the Preakness Stakes (gr. I) May 19 at Pimlico Race Course. Were he to win, he would go into the Belmont Stakes (gr. I) June 9 with an opportunity to become Thoroughbred racing's first Triple Crown winner since Affirmed in 1978.
General penalty guidelines for multiple TCO2 violations range from 90 days and a $5,000 fine to 180 days and a $15,000 fine. The range could be adjusted in the presence of mitigating factors, however, according to CHRB spokesmen Mike Marten.
Miller said the board, in considering the O'Neill case, "has five ways to go in the normal course of business."
He said the board could: accept the hearing officer's decision and penalty recommendation as presented; accept the hearing officer's decision but lower the penalty; send the case back to the hearing officer to reconsider for clarification; reject the finding and send the case back to the hearing officer for further evidentiary proceeding; or reject the finding and re-hear the case itself.
Should O'Neill be found guilty and the board accepts the hearing officer's decision and penalty, CHRB Executive Director Kirk Breed "would be authorized to designate the days to be served," Miller said. Ample time would be provided for O'Neill and his legal counsel to request a stay of suspension and challenge the decision in court.
O'Neill had previously filed suit against the CHRB in federal court seeking to enjoin any action against him by the regulatory agency until his challenge to the constitutionality of its TCO2 testing program could be adjudicated. A federal judge found in the CHRB's favor and dismissed the complaint. The U.S. Ninth District Court of Appeals also dismissed O'Neill's case.
"It's very frustrating," O'Neill said of the proceeding against him. "But I've put in about $250,000 in lawyer's fees and will let them worry about all that stuff. It won't affect us at all here. It's all so ridiculous.
"Through the expensive investigative work we're trying to figure out how it all happened,'' O'Neill added. "We've gathered a lot of data on how Lasix has an effect on the chemistry of the horse and all that stuff.''