OLDMANS TOWNSHIP, NJ- Who could ever forget the scene after the United States men’s hockey team defeated Canada to win the gold medal, when the children of Johnny Gaudreau, who played for the NHL’s Columbus Blue Jackets, were invited onto the ice to help Team USA celebrate?
Gaudreau was tragically killed, along with his brother Matthew, when they were struck by an alleged drunk driver in this New Jersey community on Aug. 29, 2024. Now, the man who struck the brothers may skate on the most serious charge due to an apparently botched blood alcohol test, The New York Post reports.
Sean Higgins was accused of mowing down the brothers as they rode bikes along a rural roadway. A BAC (blood alcohol content) test showed Higgins’ level at 0.87, above the legal limit of .08. However, his attorney claims that his BAC was in fact .075, below the legal limit for DUI.
Some New Jersey legal experts told The Post they believe there is some merit to Higgins’ attorney’s argument, and believe the blood test will be a major factor at trial.
According to Higgins’ lawyer, the blood test given to his client was on his plasma, not on his whole blood.
Attorney Anthony Vecchio, an attorney who specializes in DUI cases, said, “They are supposed to test whole blood,” noting that a plasma test can show a BAC that is artificially higher. Higgins’ legal team said a toxicology expert found his BAC was below the legal limit while adjusting for so-called “false increases” in blood plasma tests show.
Another New Jersey lawyer, Donny Epstein, called the use of blood plasma “a head scratcher,” asking, “...why did they do it this way?”
However, Salem County prosecutor Michael Mestern pooh-poohed the defense claim that the blood test was an issue, saying that his office would “refute” the findings of Higgins’ toxicology expert, and said a jury would ultimately decide if the test is valid or not.
In addition, Mestern said his office has “plenty” of other damning evidence with which to convict Higgins.
Higgins is charged with two counts of reckless vehicular homicide, two counts of first-degree aggravated manslaughter, leaving the scene of a fatal accident, and tampering with physical evidence. If convicted, he faces 72 years in prison.
On Aug. 29, 2024, Johnny and Matthew Gaudreau were struck as they were bicycling on the side of the road after leaving their sister’s wedding rehearsal dinner and left for dead. Oldsmans Township is located across the Delaware River from Wilmington, Delaware.
Experts agree that the BAC test should have been conducted using whole blood, however despite that, they don’t believe the whole case will be tossed, especially since Higgins left the brothers for dead. However, they said Higgins’ attorney does have a chance of getting the blood evidence blocked,
One defense attorney, Jonathan Bruno, said Higgins’ toxicology expert, Gary Lage, is “very well respected” and noted his own firm, Bruno and Ferraro, regularly employs him for cases.
“If they used plasma, a good criminal defense attorney would argue that the testing procedures were not followed appropriately, and that’s exactly what is happening here,” Bruno said.
“It may not be a fatal and critical flaw because there are other ways the state can proceed even if the blood reading itself–and this would be a big win for the defense–were to be kept out.
“Even if you don’t have scientific data to speak to intoxication, the state can rely on physical observation and field sobriety tests,” Bruno added.
“In this case, there were witnesses who are able to speak to his physical manifestations and intoxication.”
Vecchio agreed with Bruno, saying that “even if the blood got thrown out tomorrow, that’s definitely not going to get the case thrown out.”
Bruno said motions to dismiss indictments “are a long shot” but are often used “for leverage because if they have teeth, sometimes it’s an invitation for better kinds of plea negotiations,” Bruno said.
With that said, reaching plea deals in a “tragic,” high-profile crash such as that which took the lives of NHL players may be harder to reach because it can be difficult to reach a penalty offer that amounts to the “value of this person’s life,” Bruno noted.
In 2024, Higgins turned down an offer of 35 years in jail from prosecutors.
Despite the questionable blood alcohol readings, Mestern said prosecutors could still get a conviction without them due to other evidence, like when Higgins admitted on police body camera footage that he’d consumed five to six drinks that day, and because he was also shown on video failing field sobriety tests.
Without the drunk driving aspect of the case, prosecutors would have a much more difficult time proving the element of “extreme indifference to human life,” which is one of the elements of the charge of manslaughter. Likewise, the element of recklessness as part of the vehicular homicide charge likely relies on intoxication.
“If you strip out intoxication, I think it would be very difficult to prove the aggravated manslaughter with these facts,” Vecchio said.
Regardless, “juries hate drunk drivers when they cause accidents where people are injured or killed, and it’s not hard to prove someone was drunk at trial even without a blood result or a breath test result,” Vechhio added.
The prosecution could also withhold the borderline BAC results, which could “actually hurt him a little bit” because jurors may believe he was much more drunk than the BAC reading based on other evidence, such as the video footage and the police officers’ testimony about his physical appearance…smelling of alcohol and being unsteady on his feet.
Mestern added that Higgins’ failure to stop and render aid and make certain the brothers were okay, only stopping down the road when police found him, may be enough to prove he showed indifference to human life.
“The fact that defendant did not stop to assist Matthew and John after hitting them with his SUV could be enough, alone, to determine the defendant’s actions amounted to an extreme indifference to human life,” Mestern wrote.
Higgins previously tried to get the case thrown out, claiming that the brothers were more intoxicated than he at the time of the crash.
Prosecutors allege Higgins ran into the brothers after he passed a car in front of him that had slowed down after seeing the cyclists.
Higgins is set to appear in court for arguments on the motion to dismiss the indictment.
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