US investment banker charged with hit and run on cyclists blames "new car smell"

The victim of a hit and run incident in Colarado will today try to overturn a controversial plea bargain that saw a felony charge against Denver fund manager, Martin Erzinger, dropped in return for a guilty plea on two lesser misdemeanour charges. Should that happen, it is understood Erzinger's legal team will claim that 'new car' gases emitted from the upholstery of his month-old Mercedes were a contributing factor.

Mark Hulbert, the district attorney who made the plea bargain, justified it at the time on the grounds that "felony convictions have some pretty serious job implications for someone in Mr. Erzinger’s profession” – a statement that resulted in public outcry, particularly given the consequences of the incident for the victim, New York anesthesiologist Dr Steven Milo. Dr Milo's legal team say he will have to live with a level of pain caused by the crash for the rest of his life. His injuries may also hamper his ability to undertake delicate transplant surgery.

Dr Milo's lawyer will today attempt to have the plea bargain overturned, a move that will be resisted by both the district attorney and Erzinger's lawyer. Indeed, the district attorney will attempt to bar Dr Milo giving evidence to the hearing – on the grounds that while Colorado's Victim Rights Act guarantees a victim's input at critical stages of criminal proceedings, it does not mean a victim can intervene in a court hearing. Dr Milo's lawyer will no doubt argue in turn that the Victim Rights Act is designed to ensure that law enforcement agencies and prosecutors give the same level of protection to victims as they do to defendants.

In what many will no doubt see as a bizarre twist to an already bizarre case, should the plea bargain be overturned Erzinger's legal team will argue that the crash was caused by sleep apnia (a condition in which people temporarily lose consciousness without knowing it) that was itself brought on by the gases emitted by Erzinger's new car.

As reported on road.cc at the time of his arrest in July, Erzinger claimed not to have known that he had hit anyone when his car drifted off the road and hit a culvert. He also claimed to have reported the incident to the police although they have no record of such a call. Erzinger was arrested in the car park of a derelict Pizza Hut restaurant while on the phone to Mercedes Benz to arrange the repair of his car. He was loading damaged body panels into the boot.

Erzinger's defence team have brought in an accident reconstruction specialist who says in documents submitted to the court that: "Harmful and noxious gases emitted from the upholstery can infiltrate the driver's compartment and potentially alter the driver."

However, while it has long been acknowledged that many of the materials used to build the passenger compartments of modern cars do 'de-gas' for some months and there have long been claims that some of those gases are potentially harmful to the car's occupants, there is no scientific basis for such a claim and no record of the phenomenon ever being cited as the cause, or even a contributing cause, of a crash.

Erzinger's lawyer acknowledges as much. However, given the mountain he has to climb in terms of public sympathy for his client and the weight of evidence against him, every little helps. In the public mind at least, the bad smell is not coming from Mr Erzinger's Mercedes but the decision not to press a more serious charge in an incident that could have cost a man his life.