Prosecutors in Johnny Gaudreau death case deny blood test was flawed: ‘One chemist’s opinion’

The defense previously referred to the sample tested as plasma, but its latest brief uses the term serum. Blood serum is the clear, yellowish liquid that remains after blood clots.

Experts say a whole blood sample is preferred when testing for intoxication. That is because alcohol readings in serum samples alone are usually higher than in whole blood.

When whole blood is not tested, a conversion formula recognized under state law is used to get an accurate blood alcohol concentration figure, the defense said in its argument.

That formula was not applied in Higgins’ case, the defense said. If it was applied, his reading would have been the lower 0.075% figure, they alleged.

Gaudreau brothers

Higgins, 45, of Pilesgrove, was indicted on two counts of first-degree aggravated manslaughter, two counts of second-degree reckless vehicular homicide, second-degree leaving the scene of a fatal accident and fourth-degree tampering with physical evidence.

He faces up to 70 years in prison.

By telling the grand jury that Higgins was legally intoxicated, the prosecution allowed jurors to draw incorrect conclusions about his recklessness, his attorneys said.

“In circumstances where the State’s presentation creates a misleading factual framework that shapes the grand jury’s evaluation of probable cause, the resulting indictment cannot be allowed to stand,” they wrote.

In its new brief, the prosecution challenged the claim that the defense expert’s conclusion proved Higgins was not intoxicated.

The prosecution has evidence that refutes the defense opinion and will argue that matter if the case goes to trial, Mestern, the assistant prosecutor, wrote in the brief.

The prosecution also said the defense was arguing that prosecutors should have presented the defense expert’s report to the grand jury, even though that report arrived 14 months after the case was presented to the grand jury.

The defendant’s blood alcohol level is just one of several ways the prosecution can prove Higgins’ recklessness, Mestern said.

In the new brief, the prosecutor pointed to witness statements that Higgins was driving recklessly, that the Gaudreaus were not riding in the lane of travel, that Higgins didn’t stop to assist the brothers after hitting them, and that Higgins admitted to police he was drinking before and while he was driving that day.

Neither side has revealed why Higgins’ whole blood was not tested. The dismissal motion is scheduled to be argued on May 11.

On the night of the crash, New Jersey State Police troopers took Higgins to a hospital where a nurse performed the blood draw, according to a police report.

A trooper provided the nurse with a police blood draw kit and watched as two vials of blood were drawn. After sealing the second tube, the nurse told the trooper the seal on one of the vials may be defective, police said.

The trooper retrieved another kit from his vehicle and the nurse drew two more vials.

The four vials were packaged, taken to the State Police Woodstown Station and placed in an evidence refrigerator. It was sent for testing to a State Police lab.

The first kit was not tested but the second was used to produce the 0.087% blood alcohol level reading, the defense said.

In addition to arguing for dismissal of the entire indictment, the defense presented an alternate argument to dismiss just the aggravated manslaughter counts against him.

Proving those charges requires evidence that Higgins showed extreme indifference to human life.

“The evidence presented to the grand jury does not demonstrate conduct approaching this heightened level of culpability,” the defense wrote.

On the day of the crash, the roadway was unlit and dark and the Gaudreaus were cycling without helmets, reflective gear or state-required lights on their bikes, the defense said in its brief.

Also, the brothers were intoxicated at the time, the defense said.

Higgins was driving northbound and tried to pass vehicles in front of him, according to the prosecution.

He tried to illegally pass an SUV on the right and struck the Gaudreaus, prosecutors said. The brothers were riding their bikes single-file on the solid white line marking the edge of the roadway, according to witnesses.

Those witnesses described Higgins’ driving as erratic and reckless, and said his vehicle was partially on the grass when he hit the men.

Higgins’ Jeep came to a stop more than a quarter of a mile from the crash scene after the vehicle stalled, prosecutors said.

While the prosecution argued Higgins tried to leave the scene and could have stopped his vehicle sooner, his lawyers said he wasn’t trying to flee.

The fatal crash stunned the hockey world and the South Jersey community where the brothers grew up.

Last month, the state Civil Service Commission upheld the firing of a morgue employee who was accused of leaking information about the Gaudreau brothers’ deaths.

Gaudreau brothers memorial

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