The medication mess that’s been a thorn in the side of racing for what seems like forever is getting stranger by the minute.

On one hand, there is Doug O’Neill, trainer of Kentucky Derby and Preakness winner I’ll Have Another, who is facing a suspension and fine for a 2-year-old drug positive in California. Trainers who cheat should be punished, but everyone seems to agree that O’Neill's charges are based on an administrative rule that holds the trainer of record absolutely responsible for the condition of any horse that tests positive, rather than on evidence of actual wrongdoing.

On the other hand, Standardbred trainer Luis Pena recently was suspended after an investigation reportedly turned up 1,719 drug violations, in nearly 700 races, all during a 28-month period. There may be as much as $2.5 million in purse money involved. Those numbers are staggering, and they aren’t misprints. Trainers who cheat should be punished, but if reports are accurate, there was not a single positive drug test actually implicating Pena. Instead, the charges were based on circumstantial evidence generated during a multi-state investigation that reviewed veterinary records for the horses in Pena’s care.

Guilty Until Proved Innocent

O’Neill is being disciplined because a pre-race test on a horse he trained showed abnormally high levels of total carbon dioxide (TCO2). High TCO2 levels can indicate that a horse was given an illegal "milkshake," a baking soda mixture that might help reduce fatigue during a race. High TCO2 levels also can result from other causes, however, and that’s the confounding factor in O’Neill’s case.

After a lengthy administrative proceeding, a hearing officer made several findings of fact:

●An illegal "milkshake" was not the cause of the abnormal test result;

●There were no suspicious betting patterns;

●There was no evidence that O’Neill did anything intentional.

The California Horse Racing Board accepted the hearing officer’s report and recommendation that due to mitigating factors O’Neill should serve only 45 days of a possible 180-day suspension.

Although the hearing officer’s findings appear to exonerate O’Neill, California has a rule that holds a trainer ultimately responsible for the condition of his or her horses, even without a showing of guilt. It’s called an "absolute insurer" or "trainer responsibility" rule and it’s a mainstay of medication policy enforcement for racing commissions and sport horse organizations.

Some absolute insurer rules aren’t really "absolute." Instead, they presume a trainer’s guilt at the start, but also provide an opportunity for the accused to prove his or her non-involvement. This is a better option.

Circumstantial Evidence

Luis Pena’s suspension seems even more problematic because none of the charges appear to be based on positive tests for prohibited medications. According to press reports, this is because the illegal drugs were administered in doses too small to be detected on race day. Instead, the only proof that Pena’s horses actually received illegal medications, including pain killers and other anti-inflammatory drugs, was found in veterinary bills that reportedly averaged $25,000 a month.

Even if Pena is given an opportunity to challenge the charges against him, either at an administrative hearing or in court, what, exactly, can he challenge? Veterinary records are what they are—records of veterinary treatment—but it seems a stretch to use records as proof that horses raced with the help of illegal medication in the absence of scientific evidence.

When trainer responsibility rules are challenged in court, the racing commission or sport horse governing body wins. A fundamental tenet of our judicial system is that criminal charges against a defendant must be proved beyond a reasonable doubt.

Are trainers charged with medication violations entitled to any less due process of law?