(Photo credit: Geoff Burke-Imagn Images)

The alleged drunk driver charged with killing NHL star Johnny Gaudreau and his brother wants a judge to throw out some of the charges, contending he wasn't legally drunk.

Defense attorney Richard F. Klineburger argued Tuesday before Salem County Superior Court Judge Michael Silvanio that because the blood alcohol testing was done on defendant Sean Higgins' plasma, not his blood, it resulted in a higher BAC level than the legal limit. The defense also said that, according to their expert's analysis, Higgins' BAC was actually 0.075 percent, which is below the legal limit for driving.

The prosecution contends it was 0.087, just above the limit.

Higgins is accused of hitting Johnny Gaudreau, 31, and Matthew Gaudreau, 29, as they rode bikes on an August 2024 evening near their parents' New Jersey home as they were in town for their younger sister's upcoming wedding.

Johnny Gaudreau has been in the spotlight the past week as the U.S. hockey team won the Olympic gold medal. Gaudreau, who played for the Columbus Blue Jackets, likely would have been a member of the national team.

Team USA carried the memory of the Gaudreau brothers with them through the tournament and included Johnny's children in their on-ice team photo afterward.

Klineburger said that what he believes is an error in the blood testing 'impacted the grand jury' when it indicted Higgins on charges that included first-degree aggravated manslaughter, reckless vehicular homicide, leaving the scene of a fatal accident and tampering with physical evidence.

If convicted on all counts, Higgins could face up to 70 years in prison.

--Field Level Media