No Jail For Hit-And-Run Driver Who Plowed Into Cyclist

'Outraged' Victim Says Hedge-Fund Manager Fled Scene, Covered Up Role

A hit-and-run driver who plowed into a cyclist in Vail will has been sentenced to probation, community service and making charitable donations -- a sentence that has outraged the victim.

Eagle County District Judge Frederick Gannett on Thursday night sentenced the driver, Martin Erzinger, to 90 days in jail, but suspended the jail time.

Instead, Erzinger, 52, will lose his driver's license for a year and have to take a leave of absence from his Denver hedge-fund manager job and complete 45 straight days of community service. He's also ordered to make charitable donations, instead of paying court fines.

The light sentence came after the judge approved a controversial misdemeanor plea deal, rejecting the victim's call for a felony conviction.

The judge warned Erzinger, "If you don't do all I've asked of you, you risk going to jail. What counts most is what you do from this day forward."

Erzinger's defense attorney said the accident occurred because the driver fell asleep due to sleep apnea, and a defense expert said the driver's condition may have been compounded by the "new-car smell" fumes in his 2010 Mercedes sedan.

The plea deal drew criticism after District Attorney Mark Hurlbert said a felony conviction would jeopardize Erzinger's investment manager job and his ability to pay victim restitution. Erzinger works at Stanley Smith Barney, managing $1 billion worth of assets.

The badly injured cyclist, Dr. Steven Milo of New York, urged the judge to throw out the plea deal. His attorney stressed that Erzinger fled the accident scene, hiding his car behind an abandoned Pizza Hut and took repeated steps to "cover up and minimize his conduct."

"This is an inappropriate plea bargain," Milo's attorney, Harold Haddon, argued during the plea hearing Thursday afternoon. He said that Erzinger never took responsibility for his crime.

Later, Haddon told the judge said his client was "outraged" by the lesser charge and would not testify during the sentencing hearing.

Addressing the victim, Gannet said: "There is nothing I can do in this courtroom to make your life better. You can be stuck or continue on a path of healing."

Leaving court, Milo said: "I'm very disappointed."

Before his sentencing, Erzinger took the stand, saying: "I speak today with a humble heart. I can't imagine the pain this has brought to Steven Milo. I am devastated that this has happened. I am very sorry."

In a jab at the news coverage of the hit-and-run case, Erzinger said, "We had to hire security to protect our children after the November slanderous media campaign began."

"May God bless you all," Ezinger concluded.

Erzinger's wife also testified, telling Milo she is deeply sympathetic to the pain he continues to suffer through.

A character witness defended Erzinger, saying: "I would entrust my life to him. He's a bicyclist himself and would never knowingly leave fellow injured cyclist."

During the July accident, Milo was struck from behind while biking with a friend on the shoulder of Highway 6. He flew over the hood of the black Mercedes and landed 40 feet away on his face.

"I heard the roar of an engine and then it was lights out," the 33-year-old Milo recounted during the plea hearing earlier in the day.

The cyclist has not fully recovered from several injuries. They include damage to his spine, a herniated disc, significant bleeding from his brain, damage to his knee and shoulder blade, his attorney noted in court papers. He will require several surgeries to repair the disc and his knee and will need plastic surgery for scars on his face and body.

"I still have numbness in my hand," Milo told the judge.

Erzinger's defense attorney, Richard Tegtmeier, told the judge that his client's severe sleep apnea, which can cause him to suddenly fall asleep, caused the accident.

John Koziol, a forensic expert hired by the defense, investigated the accident and found Erzinger's new Mercedes was emitting new car fumes, according to court records.

“There are gases emitted from upholstery and other products inside a car that can potentially alter the driver’s consciousness,” Tegtmeier told 7NEWS on Tuesday. "But new-car smell has never been our defense. Our defense is severe sleep apnea, which my client has suffered from since playing college football for CU back in 1975 and '76."

On Thursday, a medical defense expert said people with sleep apnea are often unaware of their sleepiness and, in this case, Erzinger was underdiagnosed. The doctor said "it would be felonious behavior for any of us to leave after accident, but not someone who suffers from sleep apnea."

Whether or not sleep apnea and new-car fumes caused Erzinger to fall asleep, Haddon argued nothing excuses his evasive conduct afterward.

When an Avon police officer tracked down Erzinger behind the Pizza Hut a few miles away, he was putting a damaged bumper in the trunk of his Mercedes and had placed a broken side mirror in the car, court records said.

Erzinger told police he looked around after the accident but was unaware he had hit Milo.

But Haddon called the driver's claim “incredible,” saying Erzinger, who kept driving on the road shoulder until he struck a culvert, would have clearly been able to see Milo lying on the road surrounded by his cycling partner and a pickup driver who used his truck to shield the fallen cyclist from other oncoming cars.

Erzinger also told police he called 911 to report the accident. But a police officer said “Vail dispatch does not have a record of this 911 call,” according to officer’s sworn statement.

After the accident, Erzinger called a Mercedes satellite service for driving emergencies and roadside service.

"I dozed off and hit the -- or didn't hit anything -- just lost fluids in the car and need to get it towed and repaired," Erzinger told the dispatcher, according to court records.

The Mercedes call center dispatcher explained that Erzinger had called the line for emergency police, fire and paramedic response.

Erzinger apologized and agreed that he only needed roadside assistance for his damaged car.

Milo's attorney said a prosecutor said during an Aug. 20 phone conference that Erzinger was "certainly less than being fully forthcoming," court records said.

"I'm very comfortable filing a felony," Deputy District Attorney Mark Brostrom told Milo and his attorney in the phone conference, court records said. The prosecutor added that Erzinger is "acting like someone who doesn't want to take responsibility."

Yet, Hurlbert said he dropped the felony charge against Erzinger, largely because a felony conviction could mean Erzinger would lose his job.

"Felony convictions have some pretty serious job implications for someone in Mr. Erzinger's profession, and that entered into (the decision)," Hurlbert told the Summit Daily News. "When you're talking about restitution, you don't want to take away his ability to pay."

Milo and his attorney sharply criticized Hurlbert's decision, accusing prosecutors of engaging in a "charade" with Milo, "disingenuously humoring” the victim by assuring him for months that they were considering his views on sentencing.

"Mr. Erzinger struck me, fled and left me for dead on the highway," Milo said in a letter to Hurlbert. "Neither his financial prominence nor my financial situation should be factors in your prosecution of this case."