RIVERHEAD, N.Y. (CBSNewYork) – There were surprising moments in a Suffolk County courtroom Wednesday when a judge said he may drop some of the top charges in the drunk driving case of a man who hit and killed a Boy Scout on a hike last year.

At issue is Thomas Murphy‘s blood alcohol level.

At the heart of the case: Was Murphy drunk when he struck the Boy Scouts? He admits he was drinking on the golf course, but because he is 350 pounds claims he was not legally drunk.

He refused a breathalyzer so officials had to extrapolate what it was based on blood drawn hours later.

Now the jury may not consider that testimony.

“This is my baby a month before the crash,” said Alisa McMorris, whose 12-year-old son Andrew was killed. She keeps a picture of him close during the legal wrangling.

A judge denied a motion for a mistrial, but indicated that he will drop four of the top counts Murphy is facing because they are “not legally sustainable” and “there is a built in reasonable doubt.”

It comes after the testimony of Suffolk’s chief toxicologist on Murphy’s blood alcohol level when he plowed into the pack of Boy Scouts. Refusing a breathalyzer, blood was drawn four hours later, testing at .13. The expert then extrapolated it would have bene .19 at the time of the crash, more than three times the legal limit.

“Guesswork, unproven junk science. They never have enough facts to prove it,” defense attorney Steven Politi said.

Dr. Michael Lehrer’s own notes showed the level could have been even lower, at .17. That’s below the legal threshold for the top count against Murphy, aggravated vehicular homicide.

The judge struck Lehrer’s testimony from the record. The .19 extrapolation can’t be considered by the jury.

“Absolutely not. He was not legally intoxicated, nor was there any evidence to suggest that he was,” Politi said.

“There is science that says .13. That is over .08, and when all these men have to meet their makers they don’t get a fancy lawyer,” McMorris said. “None of this means anything. At the end of it I still don’t get my child back.”

None of it may matter in terms of sentencing. Murphy faces other counts that also carry a 8-25 years and don’t require the .18 blood alcohol level threshold.

Thursday is likely to be the most emotional day of testimony. Andrew McMorris’s father, a scout master on the hike, who witnessed his son being struck and killed, will take the stand before the prosecution rests its case.

As to what Murphy’s weight has to do with anything, the defense claims because Murphy is 350 pounds, that even if he had four to six ounces of vodka on the golf course he would still not have been legally drunk.

The family of Andrew McMorris says he still should not have been behind the wheel.

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