See update: Dec. 16, 2010 — “Judge accepts plea deal for financial planner….”
A Denver-based financial planner is using a unique defense to explain why he hit a bicyclist from behind near Vail, Colorado, last summer and didn't stop:
The new car smell of his 2010 Mercedes sedan made it happen.
Attorneys for Martin Erzinger say in court documents that their client suffers from sleep apnea. They maintain that he had fallen asleep behind the wheel and drove onto the shoulder where he hit Stephen Milo, a liver transplant anesthesiologist from New York.
New car smell
An accident reconstructionist, John Koziol of Koziol Forensic hired by the defense, claims that the month-old car was emitting new car fumes and that may have been a contributing factor. Quoted at SummitDaily, Koziol wrote:
“Harmful and noxious gases emitted from the upholstery can infiltrate the driver's compartment and potentially alter the driver.”
Although it's in the report, Erzinger's attorneys admitted to the SummitDaily there's no scientific basis for that theory. They do maintain that Erzinger's sleep apnea caused him to fall asleep behind the wheel, though.
Called tow truck
They say it appears that Erzinger drifted onto the shoulder and into a ditch before striking a culvert. “There was no evidence of braking and the driver was unaware he had struck anyone.”
Erzinger traveled nearly 100 yards in the ditch, according to police, before striking the culvert. He drove to Avon, some miles away, where he stopped and called a tow truck.
The district attorney, Mark Hurlbert, said he's never heard of sleep apnea as a defense.
Shouldn't drive
Sleep apnea is caused by breathing pauses or shallow breaths of a few seconds to minutes during sleep. It disrupts a person's sleep and can make a person tired during the day, according to the National Heart Lung and Blood Institute.
The American Sleep Apnea Association says people who suffer from sleep apnea shouldn't drive:
“The ASAA does not believe that individuals who are excessively sleepy because of a diagnosed but untreated sleep disorder should drive; they are a risk to themselves and others. However, there is no indication that an adequately treated sleep disorder increases anyone's risk for a fall-asleep crash.”
This defense (does anyone remember the “twinkie defense” in San Francisco?) is the second strange chapter in a case that's already received a lot of attention.
Felony dropped
You'll probably remember back in November when it was revealed the prosecutor dropped the felony hit & run charge against the driver, a financial planner at Morgan Stanley Smith Barney, but kept the 2 misdemeanors.
He reasoned that a felony conviction might lead to Erzinger losing his job at Morgan Stanley, which he'll probably need to pay restitution. At the same time, the district attorney said that if Erzinger met the terms of his probation, the felony would be wiped off the books. He favored the two misdemeanor charges because he'd lose his license, face possible jail time, and still have to pay restitution.
The victim was reportedly livid about the suggested plea bargain. He suffers spinal cord injuries and suffers debillitating headaches. He wrote:
“Mr. [Martin Joe] Erzinger struck me, fled and left me for dead on the highway. Neither his financial prominence nor my financial situation should be factors in your prosecution of this case.”
VeloNews reports that the plea bargain is the subject of a court hearing on Thursday. DA Hurlbert has filed a motion to bar Milo from testifying at the plea bargain hearing.
Milo's attorney asserts that his client has every right to testify. Whichever way the judge rules, Milo will be at the hearing, he said.
See also: “Financial planner get “bailout” in hit and run vs. cyclist“
“Prosecutor explains plea bargain in cyclist hit and run“
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