Lawyers for the man charged with killing hockey star Johnny Gaudreau and his brother in a crash last year want his indictment tossed out, arguing the state failed to tell the grand jury the brothers were intoxicated when they were hit on their bikes.

Sean M. Higgins, 44, of Pilesgrove, was allegedly intoxicated when he struck and killed NHL hockey player Johnny Gaudreau, 31, and Matthew R. Gaudreau, 29, as they bicycled along a rural roadway in Salem County on the evening of Aug. 29.

Both brothers died at the scene. Higgins’ damaged vehicle became inoperable about 1/10 of a mile down the road, prosecutors said.

Johnny Gaudreau played 11 seasons in the NHL, while Matthew Gaudreau was a college hockey player and later a coach. The brothers were supposed to be groomsmen in their sister’s wedding, which was scheduled for the day after they were killed.

Higgins was indicted in December on two counts of first-degree aggravated manslaughter, two counts of second-degree vehicular homicide, second-degree leaving the scene of a fatal accident and fourth-degree tampering with physical evidence.

In a brief filed this week, defense attorneys Richard F. Klineburger and Matthew Portella argue the indictment should be dismissed because of the state’s failure to tell the grand jury about possible “contributory negligence” by the Gaudreau brothers in their own deaths.

Higgins’ attorneys revealed in filings last month that Johnny Gaudreau had a blood alcohol concentration of 0.129% when he was killed, while his brother Matthew Gaudreau had a reading of 0.134%.

Both readings were higher than Higgins’ alleged blood alcohol concentration of 0.087%, which was above the legal limit of 0.08% for drivers.

MORE: Gaudreau families will split $500K settlement following deaths of hockey star brothers

No evidence has been presented to suggest the Gaudreaus were operating their bicycles improperly and a witness to the crash told investigators they were not riding in the roadway, according to court documents.

A Gaudreau family attorney previously did not respond to requests to comment on the brothers’ alleged blood alcohol levels.

In its filing, the defense cited past court findings that bike riders are obligated to stay off roadways when intoxicated.

The lawyers made a point of stating that their argument isn’t meant to absolve Higgins of responsibility.

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

Higgins’ attorneys are specifically asking to dismiss the aggravated manslaughter counts against him and the charge of leaving the scene of a fatal accident.

The defense argues prosecutors failed to meet the threshold for aggravated manslaughter in its presentation to the grand jury and they dispute the claim that Higgins knowingly left the scene of the crash.

Under state statute, drivers involved in crashes must stop their vehicles immediately or “as close thereto as possible,” Higgins’ attorneys said.

In January, Higgins rejected an offer from the prosecution that would have sent him to prison for 35 years in return for a guilty plea.

Another defense motion seeks records on other Salem County plea offers involving reckless vehicular homicide and aggravated manslaughter cases. Higgins’ attorneys argue the 35-year plea offer he was presented with is much higher than other local cases because of the notoriety of the Gaudreau family.

Officials with the Salem County Prosecutor’s Office didn’t immediately respond to a request for comment about the defense arguments.

Arguments on the motions were slated for March but have been moved to April 15.

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

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

The drivers of the two vehicles Higgins passed before the fatal crash described his driving as erratic and aggressive, and one said his vehicle was partially on the grass when he struck the Gaudreaus, according to court documents.

Higgins failed a field sobriety test and was arrested at the scene, authorities said.

Higgins admitted drinking five or six beers after finishing work the afternoon of the crash and drinking two beers while driving around for two hours prior to the crash, according to prosecutors. He also allegedly admitted trying to hide beer cans after hitting the Gaudreaus.

He allegedly told police his drinking “contributed to his impatience and reckless driving” on the night of the crash, according to court documents.

Higgins, a major in the New Jersey Army National Guard who works for a substance abuse treatment network based in Pennsylvania, remains jailed pending the outcome of his case.

The Gaudreau brothers’ widows sued Higgins in state Superior Court, alleging he was “negligent, careless and reckless” in operating his vehicle and that his negligence caused the brothers’ deaths.

The wives were both pregnant at the time of the crash. Madeline Gaudreau, Matthew’s widow, announced the birth of the couple’s son, Tripp Matthew, in December.

The brothers’ estates will split a $500,000 settlement with Higgins’ insurance company under a plan that was finalized in court last week.

The deaths shocked the local and international hockey communities, which have honored the brothers in various tributes. Their alma mater, Gloucester Catholic High School, held a pregame ceremony last month in which the Gaudreau family was presented with flowers and jerseys designed by Gloucester Catholic players.

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Matt Gray may be reached at mgray@njadvancemedia.com.

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