Driver says state hid alleged intoxication of Johnny Gaudreau and his brother

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The driver accused of killing Johnny Gaudreau and his brother Matthew isn’t going down without a fight.

Lawyers for Sean M. Higgins, 44, claim the Gaudreaus were drunk at the time of the collision in New Jersey and that fact was hidden from the grand jury by the state, according to documents obtained by NJ.com

Higgins, who allegedly had chugged half a dozen beers before he slammed into the brothers in Oldmans Township, N.J., last August, has argued that the brothers were more drunk than he was while they were riding their bikes.

In a court filing, defence lawyers claim the indictment should be dismissed because the state failed to tell the grand jury about possible “contributory negligence” by the Gaudreau brothers in their own deaths.

Johnny, 31, and Matthew, 29, died at the scene with their respective blood alcohol concentration listed at 0.129% and 0.134%, respectively.

Higgins was driving with a 0.087% BAC — just over the legal limit.

In the court filing, according to NJ.com, Higgins’ lawyers state the revelation does not absolve Higgins, but shows that the Gaudreau brothers were also acting in violation of the law, which required cyclists to stay off roadways when under the influence.

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“This is clearly not an argument that simply because the cyclists were intoxicated that it somehow exonerates Mr. Higgins by way of an affirmative defence and the indictment should be dismissed with prejudice,” the attorneys wrote.

“Rather, in an effort to ensure that a matter of this magnitude where the state is making a plea offer where they are requesting five times the state prison sentence of others similarly charged, there is a heightened need for transparency throughout the proceedings from start to finish.”

According to prosecutors, on the evening of Aug. 29, Higgins was driving on Route 551/Pennsville-Auburn Road in Oldmans Township when he tried to pass vehicles in front of him.

When he attempted to illegally pass an SUV on the right side, he struck the Gaudreaus as they rode their bikes single-file on the shoulder of the roadway, investigators allege.

Higgins has rejected a plea deal that would have put him behind bars for 35 years. Instead, he has pleaded not guilty to a slew of charges, including manslaughter and vehicular homicide.

There has been no evidence presented to suggest the Gaudreaus were operating their bicycles improperly. In fact, a witness to the crash told investigators they were not riding on the roadway, according to court documents.

The Gaudreaus were killed near their childhood home on the eve of their sister’s wedding.

Johnny Gaudreau played 11 seasons in the NHL, including nine for the Calgary Flames before his signed with the Columbus Blue Jackets. Matthew Gaudreau was a college hockey player and later a coach.