By JENNA FRYER
AP Auto Racing Writer
DAYTONA BEACH, Fla. — Kurt Busch lost his first appeal Saturday to have his NASCAR suspension lifted in time to be reinstated for the season-opening Daytona 500.
A three-judge panel upheld NASCAR's suspension, but attorney Rusty Hardin said Busch will now go to final appeals officer Bryan Moss, who indicated he would hear it Saturday night.
Busch was suspended indefinitely Friday after a Delaware judge said the 2004 champion almost surely choked and beat a former girlfriend last fall at Dover International Speedway.
Even if Moss, a former president of Gulfstream Aerospace who will be hearing his first appeal, overturns the suspension, Stewart-Haas Racing has moved forward with plans to use Regan Smith in Busch's No. 41 Chevrolet on Sunday. Chevrolet suspended its relationship with Busch following NASCAR's suspension.
Busch represented himself in the hearing. NASCAR was represented by Jim Cassidy, senior vice president of racing operations. The panelists were former NASCAR executive Paul Brooks, former driver Lyn St. James and Kevin Whitaker, operator of Greenville Pickens Speedway in South Carolina.
Following his hearing, Busch exited NASCAR's office building without comment. He climbed into a waiting SUV that sped off, squealing its tires.
Hardin said Busch was "very disappointed" the appeal was rejected.
"We have significant and strong evidence that contradicts the Commissioner's conclusions," Hardin said. "In the end, we are confident that Kurt will be vindicated and he will be back racing. Until then we will continue to fight on his behalf by ensuring that the entire truth is known."
Busch has been front and center since arriving at Daytona on Feb. 12, when he curtly answered questions about awaiting the judge's decision. He grumbled about how long the process was taking and was sarcastic while accusing reporters of working for TMZ.
Two days later, he orchestrated a photo opportunity with his new girlfriend on pit road before an exhibition race. As he posed, smiling alongside Ashley Van Metre, he summoned photographers to take their picture.
The judge granted ex-girlfriend Patricia Driscoll's request for the no-contact order Monday, and three days later, Busch's legal team asked for an appeal on the grounds it had new evidence to present.
Busch has maintained he did not assault Driscoll, but merely cupped her face as he requested her to leave his motorhome.
Later Thursday, Busch dropped back in the field with two laps remaining to push SHR teammate Danica Patrick around the track in their qualifying race, helping Patrick make the Daytona 500.
The next day, the commissioner opinion was released and Busch was suspended by NASCAR. It is the third suspension of the 36-year-old driver's career.
Busch began the appeals process Saturday across the street from Daytona International Speedway as Smith was preparing to take his place. Smith got to the track early Saturday to get fitted for the seat and learn the nuances of the team and the car.
Crew members used a thick piece of black tape to cover Busch's name above the car window. Shortly afterward, Smith climbed in and was one of the first to turn laps in the final practice session for the Daytona 500.
"There are a lot of people that have had their hands on that race car, have worked hard on that race car and they deserve to still have the opportunity to go out and win that race," Smith said. "And that's what we're going to try and do for them."
Smith had an 85-minute practice to get accustomed to the car, his crew and the draft at the high-banked, high-speed tri-oval. Then he had to qualify and race in the Xfinity season opener later in the day.
Busch, meanwhile, seemingly slipped into NASCAR headquarters without drawing any attention from a handful of reporters staked outside.
It's unclear what SHR will do beyond Daytona. Busch's car is funded out of pocket by team co-owner Gene Haas, who hand-picked the former champion to drive a car adorned with Haas' machine tools building company. He wanted Busch because he believed Busch could get the car to victory lane.
Haas has not commented since the Friday suspension, and he may not be willing to pay for the car if Busch is not behind the wheel.
"We haven't spoken about anything beyond that," SHR executive vice president Brett Frood said.
Smith drove co-owner Tony Stewart's No. 14 car last season at Watkins Glen after Stewart hit and killed a fellow driver who got out of his car in a short-track race. Smith, who has one Cup victory, also filled in two races in 2012 while Dale Earnhardt Jr. recovered from a concussion.
"He's a good fit, he's in the family and he'll get us through this week," SHR competition director Greg Zipadelli said. "It's a shame we are going through this, but it's what we are dealt. We'll make the best of it and see where it goes from here."