DALLAS (CBSDFW.COM) – Former Dallas Cowboy Josh Brent’s defense against an Intoxication Manslaughter charge was handed a setback Friday.  A judge ruled a forced blood draw taken the night of a fatal wreck was legal.

Brent himself did not speak publicly, except to answer the indictment read against him in court.   He pleaded “not guilty” to Intoxication Manslaughter.  He crashed his car last December, in a wreck that killed his friend and teammate Jerry Brown, Jr.   A test showed his blood alcohol level was 0.18, more than twice the legal limit.  That blood draw was the center of Friday’s hearing.

“The question is procedural,” said Brent’s attorney, George Milner.  “What is admissible today, and what is not.”   Milner argued a U-S Supreme Court ruling since the arrest made the blood draw invalid since it was done without a warrant.

Irving Police DWI Officer Travis Huckaby testified that after Brent failed field sobriety tests, he took Brent to an Irving hospital for the blood draw.   Huckaby claimed a warrant was not legally necessary in what was called “the totality of circumstances,”  obvious cases of serious injury or death.

But Brent’s attorney disagreed.   “The problem is on April 18th, the landscape changed on 4th Amendment laws as it relates to DWI and whether you have to get a blood test.  What the Supreme Court has said is you’re going have to look at the facts in each case on a case-by-case basis to determine whether a warrant should have been obtained,” Milner told reporters.

But Judge Robert Burns ruled there was no constitutional issue and said the blood result will be allowed into evidence.

As he left, once again Brent did not comment, but Milner expressed disappointment.  “No, I didn’t expect it.  I think we made the best case we could on these facts.”

Prosecutors were pleased.  First assistant District Attorney Heath Harris argued the case.  “Every accident scene is different, and that’s why you have to articulate what the circumstances are.   And again, based on the totality of the circumstances in this case, again, we believe the officers did exactly what they were supposed to do.”

Aside from a few procedural motions, the scene is set for the trial to begin.  It had been scheduled to begin in September, but now jury selection has been pushed back to November 18th; they hope to be finished by Thanksgiving.

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