The Explainer: Is having a Mercedes an affirmative defense?

The Explainer weighs in on the case of the distracted investment banker.

Dear readers,
It’s been a while since we’ve done much but talk about cycling’s 800-pound gorilla of a story, namely that of Alberto Contador’s run-in with a bad cut of meat.


Putting all of that aside, for now, we have something else to talk about. Ever since Vail Daily reporter Randy Wyrick wrote about a pending criminal matter in Eagle County, Colorado, the cycling community – indeed much of the country – has been abuzz with allegations of special treatment being afforded an apparently wealthy defendant.

For those who have not seen it, Wyrick’s story alerted his community to the fact that Eagle County District Attorney Mark Hurlbert had negotiated a plea deal with an alleged hit-and-run driver for reasons that, at least on their face, seem to run counter to every principle of equal justice.

The driver, 52-year-old investment banker Martin Joel Erzinger, was comfortably ensconced in his 2010 Mercedes while driving along a local road in Edwards, near Vail. For whatever reason, Erzinger then struck Steven Milo from behind as the 34-year-old New York anesthesiologist was riding a rented bike along the far right hand side of the same road.

Well, despite then hitting a culvert, Mr. Erzinger actually continued on his merry way, through town past the Interstate, pulled into a local Pizza Hut parking lot and then – only then – stopped to make a call for emergency assistance. Did he call an ambulance? Not really. Did he call the cops? Nuhh uhh… He called Mercedes, after he discovered he had some damage to his driver’s side mirror and his rear bumper. The guy has his priorities and those damned mirrors are expensive.

Mounting what might charitably be called the “Mr. Magoo defense,” Erzinger claimed not to have realized that he struck anyone, blaming the vehicular damage on the culvert. (They do, after all, say that a Mercedes offers a comfortable and – above all – quiet ride.)

Be that as it may, Erzinger was arrested and charged with violating Colorado Statute 42-4-1601, which makes it a crime to leave the scene of any accident that has resulted in “injury to, serious bodily injury to, or death of any person.” He was also charged with careless driving and a failure to report an accident, both of which are misdemeanors.

And back at the scene of the crime, Dr. Milo had – by any definition – suffered serious bodily injury. According to the original charging document in the case, Milo suffered from a spinal cord injury, bleeding from the brain and damage to his knee and scapula.

According to his attorney, Harold Haddon, Milo has been experiencing debilitating headaches, is expected to undergo further surgeries and is facing “serious challenges” in his efforts to resume his career as an anesthesiologist, who works as part of a liver transplant team in New York.

All of that evidence could be introduced at trial to underscore the fact that Milo did, indeed, suffer “serious bodily injury” in that accident. And therein lays the rub.

Say what you will about the Colorado Legislature, but whoever crafted this statute didn’t leave a lot of room for interpreting legislative intent when they wrote and amended 42-4-1601. Have a look for yourselves. The statute first describes what leaving the scene of an accident means and then goes on to say that

(2) Any person who violates any provision of this section commits:
(a) A class 1 misdemeanor traffic offense if the accident resulted in injury to any person;
(b) A class 5 felony if the accident resulted in serious bodily injury to any person;
(c) A class 4 felony if the accident resulted in the death of any person.

Then if any question remains, the statute goes on to define what “injury” and “serious bodily injury” actually mean.

(a) “Injury” means physical pain, illness, or any impairment of physical or mental condition.
(b) “Serious bodily injury” means injury that involves, either at the time of the actual injury or at a later time, a substantial risk of death, a substantial risk of serious permanent disfigurement, or a substantial risk of protracted loss or impairment of the function of any part or organ of the body, or breaks, fractures, or burns of the second or third degree.

So, we’re good to go. Milo’s injuries are serious. Erzinger caused those injuries with his car. He split the scene. So, he’s ready to be charged with a class 5 felony under Colorado law. Right? Well, not so fast.

Prosecutorial discombobulation

Last week, Hurlbert notified Milo’s attorney via fax that he had decided to waive the felony and charge Erzinger only with the two misdemeanor violations.

In what has to be the most boneheaded public comment made by a prosecutor in recent history, Hurlbert noted that “felony convictions have some pretty serious job implications for someone in Mr. Erzinger’s profession, and that entered into” his decision.

Excuse my French, but WTF?!?!

Erzinger manages a wealth fund valued at more than $1 billion for the investment firm Morgan Stanley Smith Barney. He’s a prominent fixture in the Colorado investment community and there are a host of gushy articles written about his character, his commitment to charity and his investment prowess still out there on the Web. One of them interestingly asks Erzinger to complete the sentence “I never leave home without …” to which Erzinger adds “Blackberry and wallet.” (Man, I sure hope someone pulled his phone records for the day of the accident.) And yes, he could lose his securities license because of a felony conviction. Even if he doesn’t, under Securities and Exchange Commission rules, he will have to notify each and every one of his clients that he’s a convicted felon. Man, oh man, that could put a serious dent in a guy’s bottom line.



Now lest you think that Hurlbert is one of those bleedin’ heart liberal types who goes easy on dangerous criminals, I direct your attention to a case in which he did file felony charges earlier this year.

Katie Brazelton was lucky enough to draw an entry into last year’s Leadville 100, but was injured before she could take advantage of the rare spot. Instead, she gave her entry and license to her friend, Wendy Lyall. Now Brazelton, at 40, was entered in the women’s 40 to 49 category. Her friend, Lyall, was just 36. So, it should not have come as a surprise that the new “Brazelton” did quite well in the category and finished second. That raised eyebrows. Folks objected. The two confessed and returned the award. Then Hurlbert charged them both with felony criminal-impersonation, a statute originally designed to protect the public against things like identity theft.

Brazelton, by the way, lost her job as a private school teacher in Vail as a direct result of the case.

Well, aside from some justifiably pissed-off mountain-bike racers, the impact of the Brazelton/Lyall conspiracy was pretty limited, but Hurlbert went after them anyway.

As far as Erzinger goes, Hurlbert has strenuously argued that Erzinger may ultimately spend more time behind bars because of the two misdemeanor charges than he would have with a first time conviction of a class five felony. Indeed, under Colorado law (18-1.3-401), the minimum sentence for a Class 5 felony is a fine ranging from $1000 to $100,000. The maximum sentence is a term of imprisonment ranging from one to four years.

Which is harsher?

The likely outcome of a conviction on the felony count would be a deferred sentence and, if he behaved himself, it would be wiped from his record in a few years. Hurlbert says that each of the two misdemeanor charges could put him behind bars for a year.

Hurlbert may actually be right on this one. Milo and his attorney have already expressed a willingness to see a deferred sentence in the event of a guilty plea to the felony charge. Erzinger might just end up spending more time in an orange jumpsuit because of the misdemeanor convictions than if he gets nailed with the felony. Hurlbert, however, completely blew the point, when he even alluded to the possibility that the long-term job impact was a factor here.

Mr. Erzinger’s job prospects not withstanding, the suggestion of more generous treatment for wealthier defendants goes against everything we’ve all been taught since fourth grade social studies. Of course, the actual disparate treatment of defendants based on socio-economic standing also goes against what we’ve been taught. Just ask Ms. Brazelton.

One thing Hurlbert has apparently not taken into consideration, though, is the request of the victim that Erzinger be charged with a felony.

Through his attorney, Milo notified the court that Hurlbert’s argument that the consequences of a felony conviction have “pretty serious job implications” was specious and one that the court shouldn’t consider.

“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.”

Dr. Milo’s lawyer weighs in

Milo has hired Haddon to act as his representative in the upcoming criminal matter. Haddon has filed a motion asking the court to review the District Attorney’s decision. Haddon, (who was part of Kobe Bryant’s defense team in another Hurlbert prosecution) told VeloNews that he’s “confident” that his motion for a hearing on the matter will be granted and that he can convince the court to take a careful look at “the propriety of that plea agreement.”

There’s a good chance that the court will throw out the agreement and Mr. Erzinger will face charges on all three counts. Even if not, we have to assume that the sentencing hearing will give Dr. Milo an opportunity to describe to the court what impact Erzinger’s actions have had on him. We can only hope that the court takes that impact into consideration.

Haddon said both he and Milo have been surprised at the attention the case has received.

“Neither Stephen nor I wanted to fan the story and get this much attention,” he said.

While some attorneys’ professed fear of the limelight might be met with a grain of salt, Haddon appears to be genuinely surprised that a story, which gained traction in a relatively small local paper, has “gone viral” since the Vail Daily story was published last Thursday.

“Steven has received invitations to appear on the national networks, like the Today Show and others, but he’s not interested in that,” Haddon said. “He wants to see the case handled fairly and he’s not out to portray himself as anything but someone who wants to get his life back in order.”

Fortunately, it’s a civil matter, too

No matter what the outcome, Milo has other options. With or without a felony conviction and whether Erzinger loses his trading license or not, we’d suspect that there will be a civil suit to follow.

Haddon said he’s on board only to represent Milo in relation to the current charges against Erzinger. “I’m a criminal specialist and I won’t be working on any civil case. That’s not my area.”

No matter who represents Milo, Erzinger could most certainly be viewed — at least from the plaintiff’s side — as the perfect defendant in a civil case: No credible defense and seriously deep pockets.

Let’s hope those pockets are on an orange jumpsuit and end up a little emptier than they were on the day Erzinger got behind the wheel of his car.

“The Explainer” is a regular feature on If you have a question related to the sport of cycling that our editors might be able to answer, feel free to send your query to and we’ll take a stab at answering. Not all letters will be published and some questions may be combined with those of other readers. Please include your full name and hometown.