Judge rejects defense that Gaudreau brothers contributed to their deaths by cycling while impaired

SALEM, N.J. — The family of NHL hockey player Johnny Gaudreau and his brother Matthew listened in pain Tuesday as lawyers debated whether the men's own drinking contributed to their deaths when they were hit by an allegedly drunken and enraged driver as they cycled at night.

After nearly two hours of argument, a judge agreed the issue was moot under New Jersey criminal law — upholding all of the charges against the driver, including manslaughter and vehicular homicide.

''There's no credence in the argument there was contributory negligence on the part of the cyclists,'' said Superior Court Judge Michael Silvanio.

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 blood alcohol content that police recorded for Sean Higgins. His lawyers had hoped to have 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 argued.

Other drivers told police the brothers were riding safely on the edge of the road, not weaving into traffic, he said. 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,'' Mestern wrote in a memo this month.

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 reckless vehicular homicide and aggravated manslaughter, along with evidence tampering and leaving the scene of an accident. He was found beside his damaged vehicle, which had stalled about a quarter mile from the crash scene.

A combat veteran and married father of two who worked for an addiction treatment company, Higgins told police he had consumed about a half-dozen beers that day, some while driving, after an upsetting phone call with his mother.

Higgins' lawyers — while also noting that the Gaudreaus were cycling without lights after dark — said they were not trying to cast blame or contribute to the family's pain, but only give their client a robust defense.

''Mr. (Richard) Klineburger and I are not blaming the two bicyclists for the incident. That would be ridiculous. That would be wrong,'' lawyer Matthew Portella said as the Gaudreaus' parents and sisters grimaced.

Mestern called the indictment sound and the judge agreed, sending the charges to trial and scheduling the next hearing for June 10.