With his intoxication manslaughter trial looming, Josh Brent was back in the courtroom Friday morning trying to get a significant piece of evidence off the table.
After pleading "not guilty" to the charges, Brent’s attorney, George Milner, tried to get a key piece of evidence thrown out.
Milner doesn’t want the jury to hear the results of Brent’s blood test that found he had a blood alcohol content of 0.18, more than twice the legal limit.
“They had no warrant. They could have gotten it, but they didn’t,” said Milner.
Police say a night on the town, December 8, ended with Brent rolling his car on State Highway 114 in Irving. The fiery wreck killed his passenger and fellow Cowboys player, Jerry Brown, Jr.
Brent refused to give police a breath or a blood sample. Milner said officers took him to the hospital and had his blood drawn illegally.
“I know for a fact, they had judges on-call in Irving. They had judges on-duty at the Dallas County jail and a specific room that’s been cleaned and sterilized exclusively for blood testing,” said Milner.
Prosecutors counter the claims saying police had the right to take a mandatory sample.
In Friday’s hearing, the state called the arresting officer to the stand who testified that Brent admitted to being behind the wheel, admitted to being at 3 or 4 clubs right before the deadly wreck, and described himself as “buzzed.”
The officer also testified that when Brent couldn't pass parts of the field sobriety test, he feared the 325-pound lineman could quickly metabolize the alcohol in his system, and said, given the evidence, the officer didn't believe he needed a warrant.
“All of that would still be admissible. It doesn't mean they wouldn't have a case. They could prosecute without the blood,” said Milner.
Judge Robert Burns denied the motion to suppress the blood evidence, meaning the jury in the case will be able to see the results.
Brent’s trial was set to begin September 23, but is now rescheduled for November 18.
NBC5’s Kendra Lyn with have the latest on-air at 11 a.m. NBC5’s Ken Kaltoff is in the courtroom, follow him on Twitter: @KenKalthoffNBC5