EAGLE, Colorado - "New-car smell" might have contributed to the driver losing consciousness in a hit-and-run accident.
Martin Erzinger was driving a new 2010 Mercedes sedan when he rear-ended bicyclist Dr. Steven Milo, about 1:30 p.m. July 3.
Erzinger's attorneys say their client suffers from sleep apnea and fell asleep at the wheel before driving off U.S. Highway 6 and onto the shoulder near Miller Ranch Road, hitting Milo from behind.
An accident reconstructionist says new-car smell may have contributed to the accident.
John Koziol of Koziol Forensic investigated the accident, according to court documents.
Erzinger had purchased the car about a month before the accident. Koziol found in his investigation he found that it was emitting new car fumes, court documents said. It might have been a contributing factor, documents said.
"Harmful and noxious gases emitted from the upholstery can infiltrate the driver's compartment and potentially alter the driver," Koziol wrote.
While the new car fumes could have been a contributing factor, "there's no scientific basis for that," Tegtmeier said.
"Once we found out that he suffers from sleep apnea, we were confident that was the cause," Tegtmeier said.
In his report Koriol writes how the Mercedes performs, how it's constructed and how Erzinger came to be driving through the ditch alongside Highway 6.
Erzinger suffered a temporary loss of consciousness or simply fell asleep, Koziol wrote.
In reconstructing the scene, Koziol found that Erzinger drifted onto the shoulder, off the edge of the road and into the ditch - the same finding as police reports.
"There was no variation from that path," Tegtmeier said. "There was no evidence of braking and the driver was unaware he had struck anyone."
Koziol concluded that:
• Erzinger was driving between 28-32 mph as the car drifted off the roadway.
• It's difficult, if not impossible, to observe anyone behind from that position and angle.
Calls to Mercedes Benz USA in New Jersey about their new car smell were not returned by deadline.
The case erupted in the public eye when District Attorney Mark Hurlbert said he had offered Erzinger a deal to plead guilty to two misdemeanors, and offered to drop a more serious felony charge - leaving the scene of an accident causing serious bodily injury.
Erzinger was originally booked on two misdemeanors and a felony.
In a Sept. 7 Eagle County Court appearance, Assistant District Attorney Mark Brostrom announced the deal to drop the felony charge. After protests by Milo's attorneys, the felony charge was refiled in October and the case was bound over to District Court.
In a Nov. 8 letter to the Vail Daily, Hurlbert said he had made the plea offer months before.
After Erzinger collided with Milo's bicycle, he drove another 265 feet through the ditch along the highway, when he hit a concrete culvert and woke up.
"In fairness to Erzinger, if anyone has a bad night they can doze off during the day," Haddon said. "But in discussing it with experts, it appears that if you doze off and wake up, especially in some high-stress situation like driving down a ditch and into a concrete culvert, it snaps you wide awake. After he hit Dr. Milo he woke up and navigated his vehicle."
Defense experts say sleepy people don't know they're sleepy, and that's why Erzinger is more likely than some to fall asleep at the wheel, Tegtmeier says.
"I have never heard of it as a defense," Haddon said. "It is a real medical problem, and I know some people who have it."
Milo suffered serious injuries in the accident, but the affair has made life difficult for Erzinger as well, Tegtmeier said last week after Haddon filed a request for District Judge Fred Gannett to reject the plea deal.
"He has been deluged with very threatening, awful, vitriolic e-mails and phone calls," Tegtmeier said.
Milo, 33, is a professor and liver transplant anesthesiologist at a New York hospital. He is married with two small children. His wife was seven months pregnant with their second child at the time of the accident.
Milo's spinal fluid leaks, causing debilitating headaches, Haddon said.
"Dr. Milo grew a beard to cover some of the facial scars. The effects of the spinal injuries will probably never go away," Haddon said. "He will always have pain. He will have to have surgery and he won't be able to do many of the athletic things he has been able to do, especially as he gets older."