UPDATE OCT. 12: Lawyers for Scott Gragson asked a judge to throw out the blood alcohol test earlier this week. His lawyers say that the test was taken outside of the time allowed, which is two years. They filed a motion for dismissal on Thursday.
However, it appears that a judge has denied that request.
The lawyers for Scott Gragson, accused of killing a woman while driving drunk, are asking the court to dismiss the charges.
Gragson, 53, is facing one count of DUI resulting in death, 3 counts of DUI resulting in substantial bodily harm, and 4 counts of reckless driving.
According to a petition filed in district court, the legal evidence presented to the grand jury was insufficient to establish probable cause.
Additionally, the petition alleges that the State of Nevada failed to present known exculpatory evidence to the Grand Jury and it presented "improper evidence" to the Grand Jury.
What it boils down to, Gragson's lawyers believe that the search warrant used to obtain blood from Gragson at a hospital after the fatal crash was "defective" because there was no probable cause to take blood from Gragson more than two hours after the crash.
According to state law, a blood test must be taken within two hours unless an officers presents evidence of exigency (urgent need or demand). Otherwise, it is not admissible in court.
Gragson's blood was taken 3 hours and 30 minutes after the incident. Not only was it taken outside the two-hour limit, the technician also used an alcohol wipe instead of iodine when prepping for the draw.
The petition further claims that the doctor-patient privilege was violated when prosecutors allowed a nurse with University Medical Center to testify about his demeanor at the hospital.
Another issue appears to be how Gragson's statement was taken. Lawyers are claiming that the statements that he made during a field sobriety test were not "presented as they were taken" to the grand jury.
Also, Gragson's lawyers say that the grand jury was not fully informed of police detective Nick Farese's perceived errors during the course of the investigation.
The petition also says there is no present evidence of substantial bodily to Greg Tassi, who was in Gragson's vehicle at the time of the crash.