The attorney for ex-Dallas Cowboys player Josh Brent wants the blood alcohol level tests thrown out for his upcoming trial.
Brent's attorney, George Milner, said the blood taken from him the night of the accident that killed Jerry Brown was taken without consent and without a search warrant.
"Given the situation that existed during this investigation they should have obtained a warrant," Milner said.
Milner points to an April 2013 Supreme Court ruling that stated a police officer cannot legally obtain a blood specimen from a defendant without that person's consent or a warrant.
An outside observer not connected to the case said Milner could have a valid argument, but doesn't think the judge would throw out the evidence.
"Judges, if it's a gray area, are hesitant sometimes to grant motions like this," attorney Toby Shook said.
The state said Brent could not adequately perform parts of the field sobriety tests and refused consent to a blood draw the night of the wreck. When officers did draw blood, they claimed Brent offered physical resistance and Texas law gives them "implied consent."
The state argues Brent is automatically subjected to a potential search based on his decision to drive while intoxicated.
Brent, 25, faces trial later this year for the death of teammate Jerry Brown, Jr. in a December automobile wreck.
Authorities believe Brent had been drinking and driving when he crashed his car, killing his friend and teammate. His blood alcohol levels were more than twice the legal limit.
KDFW FOX 4
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