Last week, the attorney for Robert Vais, the driver accused of fatally striking cyclist Hector Avalos while drunk, indicated that the defense will file a motion to invalidate Vais’ blood alcohol content test, according to Avalos family lawyer Michael Keating.

Avalos, a 28-year-old former marine and aspiring chef, was biking on the 2500 block of West Ogden in Douglas Park on December 6, when Vais, 54, fatally struck him from behind. Vais is charged with a felony aggravated DUI and two misdemeanor DUI charges.

The defense revealed its strategy at a status hearing last Tuesday, attended by many of Avalos’ friends and family members, according to Keating, a Streetsblog Chicago sponsor. Also in attendance were a coworker of Bobby Cann, who was also killed on his bike by an allegedly drunk driver last year, as well as victim advocates from the police department, the Alliance Against Intoxicated Motorists, and the Active Transportation Alliance.

The defense will argue that blood alcohol testing is unreliable, so the fact that Vais was found to have a BAC of .118, well above the legal limit of .08, on the night of the crash, should not be held as evidence, Keating said. He added that this is a common tactic in DUI cases. Last month the attorney for Ryne San Hamel, the defendant in the Cann case, filed a similar motion.

In response, the State’s Attorney’s office will use an expert toxicologist to verify that BAC tests are generally accurate, Keating said. The expert will likely testify at the next hearing, scheduled for June 30 at 9:30 a.m. at the Cook County Courthouse, 26th and California, room 702.

Meanwhile, the Avalos family’s civil suit against Vais, as well as Francesca’s on Taylor, the restaurant where the driver reportedly drank prior to the crash, is moving forward. The parties are currently engaging in written discovery, the exchange of evidence between the parties, according to Keating. The deposition of the responding police officer is expected to take place next month, Keating said.