LAS VEGAS (FOX5) -- Lawyers for Scott Gragson filed a motion Thursday in District Court to get his blood alcohol test thrown out, according to court documents.
Attorneys David Chesnoff and Richard Schonfeld argue in the motion that Gragson's blood test was beyond the two-hour limit when police arrived at the scene of the crash.
In the motion filed by Gragson's attorneys, they claim the officer knew "he was beyond the two hour rule" without notifying the Court.
Melissa Newton, a mother of three, was killed in the crash in May. Three others were injured as a result of the crash. Newton's family and the other crash victims have filed lawsuits against Gragson.
Gragson, 53, faces one count of DUI resulting in death, three counts of DUI resulting in substantial bodily harm and four counts of reckless driving. Gragson has pleaded not guilty.
According to the motion filed on Oct. 10, Gragson's blood wasn't drawn until about three hours after the crash, even though a warrant had been obtained before the two hours had passed.
In Gragson's arrest report, his blood-alcohol level was reported to be 0.147 percent, almost twice the legal limit of 0.8 percent. Gragson admitted to Las Vegas Metropolitan police officers that he had been drinking for a few hours the day of the crash.
One hour after that first test, Gragson's blood alcohol level tested at 0.128 percent, still above the legal limit for Nevada drivers.
His lawyers claim the charges and evidence against Gragson should be dismissed in the case. Chesnoff and Schonfeld filed a motion in September that alleges the evidence presented in Gragson's grand jury hearing wasn't enough to establish that Gragson committed the crimes he's charged with.
The attorneys' petition also targets several key pieces of evidence, including blood draws and statements taken from Gragson after the crash, testimony by University Medical Center staff, and a search warrant for the blood sample.
“Ideally, when a police officer is arresting someone on suspicion of DUI here in Nevada, their goal is to get a blood or breath sample in two hours because it makes the case cleaner and it makes it easier to prosecute, but just because the blood is taken outside of two hours doesn't mean the case automatically goes away,” Las Vegas defense attorney Michael Troiano said.
One way is through retrograde extrapolation, the scientific and mathematical process to estimate what a person’s blood alcohol content was at a specific time based on test results from a later period of time.
Troiano said the blood alcohol test is a huge piece of evidence and if it were thrown out, it would be a big win for Gragson’s case. He also explained even without the blood alcohol test, a DUI conviction is still possible.
“Yes, absolutely he can still be convicted on all the DUI counts just based on his behavior, his interactions with the officers and, in this particular case, obviously the body cam footage is going to be a big factor as far as evidence is concerned,” Troiano said.
Body camera footage shows officers giving Gragson several field sobriety tests. Police said he failed all of them.
"With those other two theories of prosecution that they have, even if the blood gets out, I still think it's a strong DUI case,” Troiano said.
Both of Gragson's attorneys have asked prosecutors to withhold evidence from the grand jury. The grand jury heard that evidence at proceedings, which happened June 13, July 11 and July 18, and returned the multi-count indictment against Gragson.
Gragson's criminal trial is scheduled for March 2020.