Prosecutor says whether the Gaudreaus drank before they were killed while cycling isn't relevant

NEW JERSEY, UNITED STATES: Lawyers for the driver charged with killing NHL hockey player Johnny Gaudreau and his brother, Matthew, are expected to argue in court Tuesday that the brothers contributed to the fatal crash by cycling while impaired.

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 hope to have the manslaughter and vehicular homicide charges reduced or dismissed.

However, 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 rural 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," played 10 full seasons in the NHL and was set to start his third with the Columbus Blue Jackets. He played his first eight seasons with the Calgary Flames.

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.

The hearing is set to take place before Superior Court Judge Michael Silvanio. It's not clear if he will rule from the bench.