Vail Law: What kind of deal is a plea bargain? |

Vail Law: What kind of deal is a plea bargain?

The Martin Erzinger – Dr. Stephen Milo tragi-comedy has led to a brouhaha in Happy Valley, the likes of which has little precedent. A quick recap is in order.

Erzinger, a prominent Denver-area wealth manager and valley second home owner, ran over Milo, a New York City anesthesiologist, while Milo was riding his bike on U.S. Highway 6 near Arrowhead. After hitting Milo, Erzinger sped off, leaving Milo on the roadside, severely bruised, battered, bleeding, and what has turned out to be permanently injured.

Thereafter, Erzinger apparently gained control of both his Mercedes and his senses and parked a couple of miles away. Rather than calling for assistance for Milo, he instead called for a tow truck and was hucking the broken pieces of his new Mercedes into his trunk when he was spotted by law enforcement.

A classic case of hit-and-run.

But not so fast.

Erzinger later claimed that he suffers from sleep apnea and, apparently for the first time, the disorder affected him while driving. Worse, the new car smell from his luxury ride caused a toxic brew of chemicals, which, when inhaled, called up the disorder from somnolence, caused Erzinger to slumber just the length of time it took to run down Dr. Milo, and then retracted like a window shade, leaving him fully invested of his faculties but erasing the painful episode of slumber-hit-and-run. He didn’t remember a blessed thing.

Erzinger was charged with felony hit and run, and, as is his constitutional right, lawyered up. Defense and prosecution huddled and the felony charge was plea bargained down to a couple of misdemeanors. The court accepted the plea bargain Dec. 16, and Erzinger is within the presumably warm bosom of his family for the holidays.

So what’s a plea bargain?

Leaving the politics of the particular case aside and without ascribing right or wrong to the District Attorney’s determination in this particular case, we should at the very least understand precisely what a plea bargain is and the inherent power of prosecutors to enter into agreements to resolve criminal matters.

A plea bargain may be defined as an agreement in a criminal case whereby the prosecutor offers a defendant the opportunity to plead guilty, usually to a lesser charge or to the original criminal charge with a recommendation of a lighter sentence than the charge otherwise might carry. A plea bargain allows criminal defendants to avoid the risk of conviction at trial on the original, more serious charge. As here, a felony charge may be exchanged for a guilty plea to one or more misdemeanor charges.

In most if not all jurisdictions, the district attorney is given wide latitude to bargain a fair and efficient resolution to a particular case. Some of the matters taken into consideration when determining whether to make a plea bargain offer include: the seriousness of the alleged crime, the perceived strength of the case, the character of the evidence, the prior record of the accused, the credibility of witnesses, the potential for civil redress or other compensation of the victim, and the publicity or politics surrounding a particular matter.

Our overworked courts

In fairness, it should be noted that the courts and prosecutors are grossly overworked and equally underpaid. As criminal dockets become increasingly crowded, prosecutors and judges alike feel pressure to move cases quickly through the system. Recognizing the time and costs of bringing a matter to trial, this often makes abundant sense and truly is in the best interests of The People.

Not only can cases often be decided quickly and efficiently but, too, there is certainty in accepting a guilty plea. The risk of an adverse determination at trial is eliminated. No matter how strong the evidence in a particular case may appear, no case is ever the “slam dunk” that popular television may have you believe. It is worth noting, too, that more than 90 percent of convictions nationwide come from plea bargained agreements.

Politics aside, there are any number of astute legal observers who believe that the district attorney’s resolution of the Erzinger case is nothing out of the ordinary and, in fact, an appropriate disposition of the matter. The arguably ham-handed reasoning our district attorney offered and the silly apnea-by-new-Mercedes-smell defense aside, none of us is privy to the case file and the weaknesses he may have considered.

Milo has every reason to be incensed. Disposition of the matter lacked the delft touch it deserved and excluding Milo’s input, if not legally required, was at least a public relations mistake of significant proportion.

As an avid bicyclist myself, I boil with the same public outrage that has so visibly been on display. But my lawyer brain is less convinced than my bicycling backside that the course the district attorney chose was wrong. Perhaps the greatest error was not in what was done but in how what was done was done.

What seems certain, at the least, is that our hearts should go out expansively to Milo and his family, and Erzinger should man-up and accept responsibility for his callous and self-centered act.

Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. His practice areas include: business and commercial transactions, real estate and development, homeowner’s associations, family law and divorce and civil litigation. He may be heard on Wednesday nights at 7 p.m. on KZYR radio (97.7 FM) and seen on ECO TV18 as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at

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