Desormeaux disputes validity of Breathalyzer test results

DEL MAR, Calif. – Hall of Fame jockey Kent Desormeaux had Breathalyzer readings of 0.047 and 0.041 between races at Del Mar on July 29, the day he was taken off his final two mounts and later cited by California Horse Racing Board investigators for being under the influence of alcohol.

In a hearing before Del Mar stewards Friday, racing board staff counsel Philip Laird argued that Desormeaux should be fined $5,000 and suspended 60 days for the infraction, while two attorneys representing Desormeaux argued that the Breathalyzer test was incorrectly administered and that the standard for a rider to be considered under the influence of alcohol is vague.

The hearing, which lasted nearly two hours, was conducted by stewards Scott Chaney, Kim Sawyer, and Tom Ward, who are not expected to reach a decision of any kind until next week at the earliest.

Desormeaux was given the Breathalyzer tests after the third race July 29 at the request of the stewards, acting on an anonymous tip from a racing board licensee regarding Desormeaux’s condition, according to testimony at the hearing.

The tests were conducted by racing board investigators Jim Hamilton and Phil Miyazaki and produced consecutive readings of 0.047 and 0.041. Desormeaux rode the next race but was taken off his final two mounts by stewards.

Attorneys Roger Licht and Andrew Leventhal argued at Friday’s hearing that the racing board investigators did not follow proper protocol during the testing by waiting 15 minutes after Desormeaux was pulled aside to ensure that the Breathalyzer test was not influenced by “mouth alcohol,” or residual alcohol that can cause a false reading. Leventhal cited an owner’s manual of a Breathalyzer machine stating that a waiting period should occur before conducting a test.

Under questioning from Leventhal, Hamilton, a former Los Angeles Police Department officer, testified that Desormeaux did not show signs of being under the influence of alcohol, such as slurred speech, or bloodshot eyes. Asked by Leventhal if Desormeaux would have been under the influence by LAPD standards, Hamilton said, “No.”

Desormeaux argued in a message on his Twitter feed on July 30 that the positive was caused by a Sparking Ice-brand carbonated water drink he consumed earlier that day. Racing board officials vehemently disputed that argument in a statement released July 31.

Desormeaux did not speak at length during Friday’s hearing and was not called to testify. The 45-year-old jockey has had three instances of failed Breathalyzer tests in the last five years – at Woodbine in July 2010, Belmont Park in May 2012, and Santa Anita last year. After the Santa Anita infraction, Desormeaux was fined $1,000 and ordered to undergo counseling.

In closing arguments, Laird argued that the Breathalyzer test results showed Desormeaux was under the influence while riding races, and that the rider should face sanction.

“There is the greater issue of integrity,” Laird said. “The rules are in place to protect a jockey. Any amount of alcohol jeopardizes the ability to perform at his best. That goes to the integrity of the sport. This has to be interpreted as a zero tolerance.”

Licht said in his closing argument that the data from the Breathalyzer tests did not show Desormeaux to be under the influence, considering that the driver of a car is considered under the influence when a test shows a reading of 0.08.

“The idea that it’s safe to drive a car and not ride a horse is preposterous to me,” Licht said. “It’s a vague standard. What is the determination of what under the influence is? He was not under the influence. He blew 0.04. He showed no signs of being under the influence. If he were under the influence, wouldn’t he have shown one of the signs?”