DALLAS The attorney representing Josh Brent filed a motion Tuesday asking the judge to toss out blood evidence taken after the former Cowboy allegedly crashed his car while intoxicated, resulting in the death of passenger and former teammate Jerry Brown Jr.

Brent, 25, is indicted for intoxication manslaughter in the December 8 crash in Irving. His lawyer, Dallas-based George Milner, argued that the Irving officer who took his client s blood did not secure a warrant before he did so, which violates Brent s constitutional rights.

Notably, Officer (Kevin) Huckaby, though he could quite easily have done so, did not secure a search warrant to obtain a blood specimen, Milner writes in his motion. He instead performed a warrantless, nonconsensual search of the blood of Mr. Brent.

Dallas County District Attorney s Office spokeswoman Debbie Denmon declined to comment, citing a judge s ruling last week that restricts DA Craig Watkins and his staff from speaking about Brent s guilt or innocence.

Milner asked the judge to restrict the district attorney s speech regarding the case after Watkins told 105.3 The Fan that our position is that he should be incarcerated." He also alleged that Brent was still drinking and using drugs, both of which violated the conditions of his bond.

On June 27, Brent was rebooked into jail for violating his bond conditions. According to a court document, he tested positive for marijuana on June 19.On July 7, however, Judge Robert Burns freed him until his trial in September.

Milner s court order seeking the dismissal of the blood evidence argues that Ofc. Huckaby had ample time and resources to secure a warrant and should have done so before he took Brent s blood.

The order cites the recent Supreme Court ruling Missouri v. McNeely as precedent for dismissing the evidence.

The Court included several factors for lower courts to consider, such as whether it is practical for an officer to obtain a search warrant within a time frame that still preserves the opportunity to obtain relevant evidence and whether the officer identifies any other factors that would cause an emergency or unusual delay in securing a warrant , Milner writes in the order.

Brent s blood alcohol content ended up being .189, more than twice the legal limit of .08. Milner says the presence of emergency units who maintained traffic after the wreck and the on-call judges who can approve blood-draw warrants at all hours of the night means that Ofc. Huckaby did not exercise his due diligence before taking Brent s blood.

Brent s trial is scheduled for September 23.He announced his retirement from the NFLon July 18.

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