NEW ORLEANS, LA (WVUE) - Will Smith's blood alcohol level registered over the legal limit at the time of his death. That's according to FOX 8 sources.
Smith spent the hours before his death first at French Quarter Fest with his wife, then at Sake Cafe on Magazine Street. Days after his murder, Smith family attorney Peter Thomson was asked if Smith was drunk when he left the restaurant, just before getting into an altercation with Cardell Hayes.
"Will is not inebriated to the point where he cannot drive. He's not emotionally or physically affected," Thomson said.
Yet FOX 8 sources confirm toxicology tests performed on Smith show he had a blood alcohol level three times over the legal limit.
"The most important thing is going to be Will Smith's behavior," FOX 8 legal analyst Joseph Raspanti said. "Now, being triple drunk is going to affect your behavior."
Police said Hayes shot Smith eight times in the back after the two were first involved in a hit-and-run on Magazine Street, then another fender bender on Sophie Wright Place and Felicity.
After the shooting, Cardell Hayes' attorney, John Fuller spoke to the media, saying, "Not only did my client feel threatened, but citizens that were out there in that block felt threatened, as well."
Yet at the time, Thomson commented, "There's nothing, nothing Will Smith could have ever said to have caused that. That was specific intent to shoot and kill him and specific intent to shoot or kill or cause great bodily harm to his wife."
Smith's wife, Racquel, was shot twice. Raspanti said because she was an eyewitness, her testimony will be critical to the case. He said it's unclear if toxicology tests were performed on her since had to be treated for gunshot wounds, and thinks the defense will pounce.
"If they don't have toxicology on her for instance, they're going to try to imply that she was out with her husband who was drinking a lot so she may have been drinking a lot also," Raspanti said.
That could impair what Racquel Smith remembers experiencing or witnessing.
On Wednesday, Cardell Hayes will appear in Criminal Court for a discovery hearing. He'll have another appearance later in the week.
Hayes remains behind bars at OPP, charged with second-degree murder and attempted second-degree murder. The 28-year-old is being held on a $1 million bond.