Administrative Rule of the Month - Taking of Samples

Ownership of property and individual rights are staples of modern capitalism. The founding documents of our country expressly put guarding your life, your property and possessions, and your individual rights into sharp focus. One of the ‘protections’ that IBOP outlined in our first newsletter was the Protection of Owner’s Rights. Unfortunately, we’ve seen how the ‘rights’ of a property owner can be regulated away.

Based upon recent actions of the Indiana Horse Racing Commission (IHRC), ownership of a horse doesn’t carry a lot weight with them. The IHRC's new version of 71 IAC 8.5-2-4 regarding the taking of blood, urine, saliva, or other test samples from a horse makes this very clear. (The standardbred version of this administrative rule is 71 IAC 8-3-4.) If you are the owner of the horse and not the trainer, you may no longer witness the taking of these samples from your own horse. At the January 24, 2012 commission meeting, the IHRC amended a rule without considering the rights of the actual horse owner.

Here is the version of the rule that was in effect before the IHRC decided to “regulate” it:

71 IAC 8.5-2-4 Taking of samples
Authority: IC 4-31-3-9
Affected: IC 4-31-12
Sec. 4. (a) Blood, urine, saliva, or other samples shall be:
(3) witnessed, confirmed, or acknowledged by the trainer of the horse being tested or his or her authorized representative or employee and may be witnessed by the owner, trainer, or other licensed person designated by them;

IBOP Comments: Clearly, this portion of the rule defines who may witness the taking of a sample from a horse for testing with the owner included.

This version of the rule was emailed to horsemen’s associations for comment prior to the IHRC meeting:

71 IAC 8.5-2-4 Taking of samples
Authority: IC 4-31-3-9
Affected: IC 4-31-12
Sec. 4. (a) Blood, urine, saliva, or other samples shall be:
(3) witnessed, confirmed, or acknowledged by the trainer of the horse being tested or his or her authorized representative or employee unless the sample is being taken pursuant to 71 IAC 8.5-7-1 (c) or 71 IAC 8.5-7-1 (d), and may be witnessed by the owner, trainer, or other licensed person designated by them;

IBOP Comments: The IHRC’s intent regarding the regulating of this rule was to eliminate any witnessing of test samples taken in a postmortem exam. The references to 71 IAC 8.5-7-1(c) and (d) are regarding post mortem exams and the taking of samples for testing. The rule states, “The presence of a prohibited substance in a specimen collected during the postmortem examination may constitute a violation.” When this proposed rule was made public, IBOP formally objected. Our position was that if a penalty could be assessed for postmortem drug testing, then “the integrity of those samples should be treated no differently than samples taken from a live horse.”

Plus, 71 IAC 8.5-7-1(d) encourages the taking of testing samples from an injured horse prior to that horse being euthanized. (With the ability to take postmortem testing samples, then why would the IHRC prefer to extend the suffering of an injured horse?) Our position on this entire rule stated that an owner or an owner’s representative should have the right to witness the chain of custody of ANY sample collected for testing ANY time unless specifically waived by the owner or the owner’s representative. Clearly, our plea for recognition of an owner’s right fell on deaf ears.

Below is the version of the rule that was filed with the Indiana Register and is now the rule in effect:

71 IAC 8.5-2-4 Taking of samples
Authority: IC 4-31-3-9
Affected: IC 4-31-12
Sec. 4. (a) Blood, urine, saliva, or other samples shall be:
(3) witnessed, confirmed, or acknowledged by the trainer of the horse being tested or his or her authorized representative or employee unless the sample is being taken pursuant to 71 IAC 8.5-7-1(c) or 71 IAC 8.5-7-1(d);

IBOP Comments: As you can see, the new IHRC-approved rule now excludes any sample being taken prior to euthanizing a horse or during a postmortem from being witnessed by the horse’s connections. You will also notice that the word “owner” no longer exists in the rule. In Indiana, the actual owner of a horse, if different from the trainer, may no longer witness, confirm, or acknowledge the taking of testing samples. Through the course of the commission’s discussion of this rule, they eliminated the phrase, “and may be witnessed by the owner, trainer, or other licensed person designated by them.”

Commissioner Jason Barclay thought that the phrase "and may be witnessed by the owner, trainer, or other licensed person designated by them" was redundant to the first part of the sentence. He is partially correct with the rule repeating the word trainer and referencing another licensed person designated by the owner or trainer. However, his efforts to remove the redundancy completely eliminated the owner from witnessing ANY taking of samples from their horse(s), postmortem or otherwise. The IHRC assumed that an owner MAY be involved, but eliminated an owner’s ability TO be involved. A trainer is an owner’s authorized representative, not the other way around, and Indiana’s commissioners should know this.