Edwards hit-and-run motorist’s attorneys blame sleep disorder
EAGLE, Colorado – A sleep condition likely caused the driver in a hit-and-run bicycle case to fall asleep at the wheel, his attorneys said in court papers filed Friday.
Attorneys for Martin Erzinger say he suffers from sleep apnea, and that it was diagnosed the week after his collision with Dr. Steven Milo on July 3. The diagnosis was confirmed by Dr. Ronald Kramer, who is considered an expert in the field, Erzinger’s attorneys said.
“The following week, Mr. Erzinger was examined by his family physician and, for the first time, found he was suffering from severe sleep apnea, which is likely the cause of his unexpectedly falling asleep, or losing consciousness, while driving,” Richard Tegtmeier, Erzinger’s attorney said in court documents.
The case has caused an uproar over District Attorney Mark Hurlbert’s decision to charge Erzinger with two misdemeanors and drop a felony count with which Erzinger was originally charged. Erzinger has agreed to pay restitution, and a felony charge could endanger his future in the securities industry, and his ability to pay that restitution.
Erzinger has a home in Arrowhead and handles wealthy clients for Morgan Stanley’s Denver office.
Tegtmeier said arguments by Harold Haddon, Milo’s attorney, are founded on a false premise. Tegtmeier said Haddon is asserting that Erzinger knew he had struck someone when his car left Highway 6 near Miller Ranch Road in Edwards.
“This is not what happened,” Tegtmeier said.
Erzinger lost consciousness and lost control of his car, which drifted to the side of the road and struck Milo, who was riding his bicycle on the shoulder and not on the separated bike path, Tegtmeier wrote.
Erzinger continued off the road and into a ditch where his 2010 black Mercedes sedan struck a drainage culvert. That jarred Erzinger into “semi-wakefulness,” Tegtmeier wrote.
Phone records indicate Erzinger was not talking or texting at the time of the collision, Tegtmeir wrote.
When Erzinger awoke and regained consciousness, he was in the ditch and was unaware that he had struck anyone, Tegtmeier argued.
Milo wrote in a letter to Hurlbert that the case “has always been about responsibility, not money.”
“Mr. Erzinger struck me, fled and left me for dead on the highway,” Milo wrote. “Neither his financial prominence nor my financial situation should be factors in your prosecution of this case.”
An accident reconstructionist cited by Tegtmeier said Erzinger could not have seen Milo in the road because Milo was “above the top of the Mercedes and behind the vehicle as the driver regained control of the vehicle,” wrote John Koziol of Koziol Forensic.
Erzinger also took a polygraph test in which Tegtmeier said nothing indicated his client was lying when he says he didn’t know he’d hit Milo.
Ironically, when Erzinger was taken to the Vail Valley Medical Center for treatment of rapid heart beat, high blood pressure and light-headedness, he spoke with Tom Marsico, one of Colorado’s richest men and Erzinger’s long-time acquaintence. Milo is Marsico’s son-in-law.
Erzinger is a director in private wealth management at Morgan Stanley Smith Barney in Denver. His biography on Worth.com states that Erzinger is “dedicated to ultra high net worth individuals, their families and foundations.”
Erzinger manages more than $1 billion in assets. He would have to publicly disclose any felony charge within 30 days, according to North American Securities Dealers regulations.
Erzinger has agreed to plead guilty to two misdemeanor charges. The plea agreement was announced in Eagle County Court, before Judge Katharine Sullivan.
Attorneys were summoned to District Judge Fred Gannett’s chambers Friday afternoon, with whom the case now resides. Gannett, whose background includes time as a sheriff’s deputy, a defense attorney, a prosecutor and judge, said the plea agreement was not tendered to him in open court, and that he is not generally inclined to reject plea agreements.
Richard Tegtmeier, Erzinger’s attorney, has not asked Gannett to do anything.
Haddon, Milo’s attorney, asked Gannett to reject the plea agreement.
Gannett said that while there is a “substantial” public interest in this case, he knows very little about it and he’ll keep it that way until it appears before him. He says he has received some e-mails about it, and directed the court clerk to stop accepting them.
Everyone directly connected with the case will get to say what they need to say, Gannett said.
“I’m not interested in hearing from the public as to what should or should not happen in this case,” Gannett said. “Their avenue of communication goes directly to the district attorney’s office.”
But when it comes to evidence and argument from those directly involved, he said he would rather err on the side of the public’s right to know.
“What’s of importance to me is that Dr. Milo be able to say in person that he doesn’t like it,” Gannett said.
They’re scheduled to be back in court Dec. 16, when Milo is scheduled to testify.
Staff Writer Randy Wyrick can be reached at 970-748-2935 or firstname.lastname@example.org.
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