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New Car Smell Defense Cited in Hit and Run

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By Tanya Roth, Esq. on December 30, 2010 5:53 AM

Was it really the new car smell that caused the hit and run accident that left a doctor severely injured and in permanent pain? The answer is yes, possibly.

Morgan Stanley money manager Martin Erzinger was driving a new 2010 Mercedes when he lost consciousness or dozed off and hit Dr. Steven Milo who was riding his bike. Erzinger was charged with two misdemeanors and a felony charge of leaving the scene of an accident causing serious bodily injury.

Erzinger's defense team hired an accident reconstructionist to put the details of the accident together and determine the exact cause, reports the Vail Daily. According to defense attorneys, Erzinger suffers from sleep apnea and fell asleep or lost consciousness behind the wheel. The new car smell, or fumes, may have contributed to this. "Harmful and noxious gases emitted from the upholstery can infiltrate the driver's compartment and potentially alter the driver," John Koziol of Koziol Forensic wrote in his report.

According to Koziol, Erzinger drifted off the road and hit Milo from behind. There was no evidence of any change in the car's path before it hit Milo, reports the Daily, leading to the defense's inference that Erzinger was unaware of what was happening. Erzinger did not wake up until after he had hit Milo's bicycle, drove another 265 feet on the side of the highway, and finally hit a concrete culvert.

Leaving the scene of an accident where there has been serious injury, or a hit and run, is a serious charge. Erzinger's attorneys may be breaking new ground using sleep apnea as a defense not only to causing the accident, but to leaving the scene unaware that it had happened.

However, like any other medical condition such as migraines or seizures, if an individual knows he has the condition, or that it could cause him to lose control of a vehicle, and did not take steps to prevent it, he could still be liable for an accident he caused while unconscious.

The case "erupted" writes the Daily when the news broke that Martin Erzinger had been offered a plea deal to plead guilty to the misdemeanor charges and have the felony charge dismissed. After Milo's attorneys objected to the deal, the felony charge was re-filed and the trial will take place in the local district court.

Dr. Milo still suffers from crippling headaches, will have chronic pain issues and never again have the athletic abilities he had before the accident. A civil suit will no doubt follow the criminal trial.

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