According to the defense, the Gaudreaus had blood-alcohol levels of .129 or above, higher than the .08 legal limit in New Jersey and the .087 that police recorded for Sean Higgins. They want the manslaughter and vehicular homicide charges reduced or dismissed.
“To say that their BAC’s may have contributed to the cause of death is a reach to say the least,” Assistant Prosecutor Michael Mestern told the judge, noting the severity of their injuries. “This is kind of a red herring.”
Defense lawyer Richard Klineburger III said that for now he just wants more information on the laboratory testing.
“I’m not saying it’s the cause of death,” he said. “But I don’t know what impact it had, if any."
Salem County prosecutors note that there is no law banning cycling while intoxicated in New Jersey, and that witnesses said the brothers were riding single-file on the edge of the road, not weaving into traffic. Prosecutors have accused Higgins of being impaired by alcohol and fueled by road rage when he ran into them.
“There are four witnesses that witnessed the defendant speeding and illegally passing the Bronco on the right when he struck the brothers. The witnesses also saw the brothers riding single file, with the flow of traffic, on the fog line just prior to being struck by the defendant,” Assistant Prosecutor Michael Mestern wrote this month in asking the judge to exclude the defense’s “contributory negligence” theory at trial.
He said there was “no credible argument” that would make the cyclists' intoxication levels relevant.
The Gaudreaus were bicycling near their hometown in southern New Jersey on the eve of their sister’s wedding on Aug. 29. Both of their wives have since given birth to sons. Johnny Gaudreau's widow, Meredith, gave birth to their third child on April 1. The sister's wedding was postponed until this summer.
Johnny Gaudreau, known as "Johnny Hockey," was set to start his third season with the Columbus Blue Jackets after eight seasons with the Calgary Flames. Matthew played hockey at Boston College, like his older brother, and was working as a high school coach.
Higgins, 44, of nearby Woodstown, New Jersey, is charged with two counts each of aggravated manslaughter and reckless vehicular homicide, along with evidence tampering and leaving the scene of an accident. He was found beside his damaged vehicle about a quarter mile from the scene.
A combat veteran and married father of two who worked for an addiction treatment company, he told police he had consumed about a half-dozen beers that day, some while driving, after an upsetting phone call with his mother.
He faces a maximum 70 years in prison if convicted on all counts. His lawyers have rejected a plea offer of 35 years, arguing that defendants in comparable cases received far less time. The defense also wants to review the laboratory testing methods.
“Mr. Higgins is not demanding to be treated differently than any other but rather is respectfully requesting that the presentation of the charges against him be full, complete and transparent," defense lawyer Matthew Portella wrote in a motion to dismiss the indictment.
Superior Court Judge Michael Silvanio is presiding over the case. It wasn't clear Tuesday if he would rule from the bench on the intoxication issue.
Credit: AP
Credit: AP
Credit: AP
Credit: AP
Credit: AP
Credit: AP