Section 183.353. Presence of owner, trainer or authorized agent; split sample

(a) During the taking of the saliva, urine and blood sample by the Commission Veterinarian, or a person appointed by the Commission under the supervision of the Commission veterinarian, the owner, trainer or authorized agent of an owner may be present at all times. The absence of the owner, trainer or authorized agent of an owner shall not invalidate the procedures followed in taking the sample, nor shall the absence be the grounds for objection to Commission action based on a laboratory report resulting from the test of a sample taken in the absence of the owner, trainer or their authorized agent. The sample so taken shall be placed in two containers and shall be sealed and the evidence of the sealing indicated thereon by the signature of the Commission veterinarian or his assistant. The owner, trainer or their authorized representative may be present at the sealing of the split of the sample. The absence of the owner, trainer or their authorized agent may not in any way invalidate the procedures followed in splitting the sample nor shall the absence be the basis for objection to Commission action based on a laboratory report resulting from the test of split samples taken in the absence of the owner, trainer or their authorized agent. One part of the sample is to be placed in a depository under the supervision of the presiding judge, another agency the Commission may designate, or both, to be safeguarded until the time as the report on the chemical analysis of the other portion of the split sample is received.

(b) Should a prerace or post-race test be classified as positive, the Presiding Judge shall fix a time and place for hearing thereon for the day next following the day of receiving the positive report. In the event that the hearing should fall on a Sunday, the hearing shall be held the following day. Parties shall be afforded the opportunity to present testimony relating to the alleged violation. At the hearing or not later than noon of the day following the hearing the person charged with the violation shall elect whether to exercise a right and privilege to have the portion of the specimen known as a ‘‘split sample’’ sent to the Commission reference laboratory or to another laboratory which has been approved by the Commission for additional testing. Election may be stated on the record of the hearing or notice given in writing. If the owner or trainer does not claim the split sample for the purpose of having another laboratory conduct a test, the owner or trainer shall execute a waiver that the split sample will not be used in the proceeding. Failure to use the split sample shall not infringe upon a right or privilege of appeal. The owner or trainer shall bear costs of the independent test on that portion of the specimen which is known as the ‘‘split sample,’’ including costs of packing and transportation, if any.

The provisions of this § 183.353 amended September 26, 1980, effective September 27, 1980, 10 Pa.B. 3797. Immediately preceding text appears at serial page (51866).

Notation

Notes of Decisions

The fact that a horse trainer has a duty to guard against drug administration, 58 Pa. Code § 183.357, and that a veterinarian has a duty to prevent a drugged horse from racing, 58 Pa. Code § 183.356, does not relieve an owner of responsibility for administration of medication that resulted in a positive test since the regulations clearly also provide that fine or suspension may be imposed on ‘‘any person,’’ 58 Pa. Code § 183.268, or the ‘‘person or persons having control or custody,’’ 58 Pa. Code § 183.352(b). Reichard v. Harness Racing Commission, 499 A.2d 727 (Pa. Cmwlth. 1985).

Cross References

This section cited in 58 Pa. Code § 183.355 (relating to control of horse, presumption of knowledge).