LAS VEGAS (KTNV) — Lawyers for the wealthy Las Vegas real estate executive accused of killing a woman while driving drunk after a charity golf event, are asking a judge to toss the case.
Scott Gragson's lawyers claim there are several reasons the case should not move forward, including a possible issue with the blood test.
13 Action News asked a local defense attorney to explain the petition that was filed on Monday by Gragson's lawyers.
Defense attorney Chip Siegal says while that makes the case more a difficult for the state, it's not grounds for dismissal.
"That does not mean that just because they got a blood sample outside of two hours, that the blood is not going to be introduced into evidence," says Siegal. "It is. It is certainly going to be used to try and prove what the person at the time of driving and my guess is the state's going to try to argue it demonstrates that the person was under the influence."
Gragson's lawyers also argue he was never read his Miranda rights. Siegal says in DUI cases, Miranda rights are required when officers ask questions like "how many drinks did you have?"
"Those questions which are designed to elicit an answer -- Miranda situation. Officers' observations about what did he look like, how he performed on some tests, his behavior -- that's not Miranda. It doesn't matter," Siegal explains.
Attorneys close to the case tell us it's common in DUI cases for suspects to admit guilt before rights are read, but the cases are rarely if ever dismissed.
According to the court documents, Gragson's lawyers are also taking issue with University Medical Center staff using an alcohol wipe instead of iodine when taking Gragson's blood, claiming that could create a false positive.
Siegel says that will probably be argued at trial, but it's not something likely to overturn the case.
In fact, Siegel says it's very rare cases are ever tossed out at this stage because the burden of proof is so low.
"The judge will make a decision as to whether there was probable cause -- that's really what it is for a Grand Jury -- whether there's probable cause that, probably, a crime was committed and, probably, he was the one to commit it.
Attorneys for the crash victims told us they see this as a desperate attempt to minimize the charges against Gragson. They say his defense attorneys are paid to poke holes in the state's case, but they doubt the claims will gain any traction in court. They say that mounting a technicality argument and not acknowledging fault is a slap in the face to the victims.