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State Supreme Court

A horse race at the Charles Town track in 2007 still has no winner and the winning horse may ultimately be declared by the state Supreme Court.

Justices heard oral arguments Wednesday on the case involving Fred and Sharon Johnson, owners of the winning hose in the 2007 Breeder's Classic at Charles Town. The racing commission stripped the horse of the title when a post-race test indicated there was caffeine in its system. The Johnsons sued and are now appealing a lower court ruling that upheld the state Racing Commission's standard that caffeine is a banned substance.

"The argument here is clearly that caffeine is a drug and caffeine is a stimulant," argued the Johnson's lawyer Jim Campbell. "It becomes confusing when you look to FDA regulations."

Campbell argues the state's racing standards are based on a 1949 case, made during a time when science had not advanced to the point of being able to test for precise amounts of caffeine. His argument points to regulations in other states where the precise amounts are identified that could affect performance. Speaking before the High Court, Campbell says it's not the substance--but the amounts that matter in the case.

Arguing for the state Racing Commission, attorney Benjamin Yancy says it's just the opposite.

"He's referring to all these rules and other jurisdictions and the bottom line is caffeine is a banned substance in those jurisdictions, particularly in the levels found in this horse," Yancy said. "The levels in this horse were well above what the RCI recommends for caffeine. On one study they were twice that amount, in another study they were three to five times that amount."

The Johnsons argue evidence shows the horse probably ingested the caffeine after a soft drink or coffee was spilled in its stall while in the custody of the racing commission.

Yancy says the racing commission purposely stays away from setting allowable levels because it results in the exact scenario over which he was arguing, endless litigation, endless debates and arguments, and years and years before the winner of a race is actually known.

The state Supreme Court will hand down a written opinion within the next few months.