dissenting:
Before the rule at issue was amended in 1998, a carbon dioxide level “in excess of levels at which such substance [] could occur naturally” was prima facie evidence that a prohibited substance was administered to the horse. In 1998, three weeks before the race in question, the rule was amended to specify the carbon dioxide level that would be considered excessive (above 37 mmol/L) and to provide a procedure by which the licensee could attempt to prove that his horse had a naturally high carbon dioxide level. The majority holds that the amended rule was inoperative because certain procedures identified in the rule had not been established at the time Dugan’s horse was tested. If the amendment was inoperative, however, the original rule should control.9
Under the original rule, to establish a violation the State Steward would have to prove that the horse’s carbon dioxide level was higher than a naturally occurring level. To rebut that showing, Dugan would have to prove that his horse’s carbon dioxide level was naturally as high or higher than the tested level. There is record evidence to support both positions and there would be no unfairness if this Court remanded to the Commission with instructions that it review the record and decide this matter again under the old rule. To the extent that Dugan may wish to introduce more or different evidence, the Commission could reopen the record to accommodate him. This result would place Dugan in the same position he would have been in had the race in question been run a few weeks earlier, when the old rule was still in effect, and it would eliminate any due process concerns relating to the absence of new testing and quarantine procedures.
. See: Clark v. State, Del.Supr., 287 A.2d 660, 664 (1972).