An effort to have a search warrant for a blood draw in a driving under the influence case failed and the case now appears headed for trial on Oct. 2.

Shane Kelly Downs is charged with driving under the influence, per se, possession of a handgun while under the influence and speeding.

Defense attorney Randall York presented a video of the traffic stop which Judge Gary McKenzie viewed prior to the hearing held earlier this month. York used the video to back up his theory that information in a search warrant obtained by Trooper Jake Bramer misstated or omitted facts that might have led a judicial commissioner to deny issuing the document.

“In this case, he (Downs) did everything required by law,” York argued. “No slurred speech, no stumbling, no bad driving other than 19 mph over the speed limit.” York said the trooper had an obligation to present a true picture of the entire issue and that if the magistrate had been fully informed, he would not have issued the search warrant.

Assistant District Attorney James Hargis countered that the theory presented by York “misstated the facts” and that there existed enough evidence without a search warrant for the blood alcohol content.

McKenzie noted evidence shows there was a strong odor of alcohol, that Downs refused or could not complete the field sobriety test and that there was admission from Downs that he had been drinking prior to his arrest.

“I don’t know of any law that requires putting in all the facts” in a blood alcohol content search warrant, McKenzie noted. He added that all that needed to exist was “probable cause” to believe that the suspect was too intoxicated to be driving under state law guidelines.

As for York’s contention that his client is not guilty of the charge, McKenzie said that is a question for the jury to decide.

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