Judge: Father's blood sample admissible in drowning of infant under Minnetonka ice

A blood test that revealed that a Minnetrista father was legally drunk when his sport-utility vehicle crashed through the ice in a Lake Minnetonka channel with his infant daughter inside is admissible in court, a judge ruled Monday.

The ruling leaves in question whether the criminal vehicular homicide case against Jonathan Markle will proceed to trial or end with a guilty plea.

Attorneys for Markle, 42, had challenged the legality of the blood test taken after the Jan. 18 accident that resulted in the death of his 8-month-old daughter, Tabitha, and the single felony charge against him. In a hearing last June, they argued that the blood sample — the key piece of evidence — should be thrown out in the wake of a recent U.S. Supreme Court ruling that deemed search warrants necessary for blood draws in most drunken-driving cases.

However, in his ruling, District Judge Jay Quam said that the events of that night justified the need to take Markle's blood without a search warrant at a Waconia hospital.

"The exigent circumstances of this case — including the time-consuming nature of the rescue, the time involved in bringing Mr. Markle to the hospital, and the time necessary to ensure that Mr. Markle did not need medical care — relieved the officer of the need to get a warrant before drawing blood from Mr. Markle without his consent," Quam wrote.

Markle's attorney, Joe Friedberg, said he's not certain of the next step in the case. Both sides will return to court Monday to determine how to proceed. "I'm disappointed, but the judge clearly put a lot of effort into it," he said. "I disagree with it in a lot of ways, but I'm a defense lawyer; I'm used to being ruled against."

The blood sample in question revealed a concentration of .13 percent, well over Minnesota's legal driving limit of .08 percent, less than two hours after Markle's SUV broke through the channel between Priests and Halstead bays about 5 p.m. Jan. 18. His family was on the way home from Lord Fletcher's restaurant.

Markle, his wife, Amanda, and another daughter, 2-year-old Isabelle, escaped from the submerged vehicle and were treated for hypothermia. Tabitha, who was strapped into her car seat, was underwater more than 15 minutes. She died three days later.

An Orono police officer smelled alcohol on Markle's breath. He said he'd had two beers that night.

Friedberg hinged his argument on the Supreme Court's April decision in Missouri vs. McNeely, a 5-4 ruling that said authorities should obtain a warrant before taking blood samples from suspected drunken drivers. That ruling rejected two earlier Minnesota Supreme Court rulings that said warrantless blood draws were permissible because of the risk that blood alcohol levels could dissipate in the time required to obtain a warrant.

Friedberg bolstered his argument with the home and cellphone numbers of 61 Hennepin County judges, arguing it would have been easy to obtain a telephone warrant.

However, Assistant County Attorney Deborah Russell countered that the officer would first have to speak with Markle before obtaining a warrant, and he wasn't allowed to do so immediately because of the medical treatment.

Under Minnesota's implied-consent law, permission to take a blood sample is not required in cases of accidents with injury or death. Because of that, Hennepin County sheriff's deputy Adam Moore testified that he never considered getting a warrant to take Markle's blood sample after he arrived at Ridgeview Medical Center in Waconia. Markle, believing he didn't have a choice, did not resist giving a sample.

While Quam acknowledged in his ruling that Moore made no effort to obtain a warrant, "the test is not what Deputy Moore knew, believed, or theoretically could have done; it is whether there are objective, exigent circumstances ... which relieve Deputy Moore of the requirement to obtain a search warrant before extracting blood from Mr. Markle."

Quam also noted that Moore had to have a reasonable basis to conclude that Markle may have been impaired, despite his claim that he drank only two beers. "That amount ... would clearly not result in an alcohol level hours later of .08 or more," Quam wrote. "Whether a lie or the product of wishful thinking, the claim of drinking only 'two beers' by an indisputably intoxicated driver is commonplace."

Quam also rejected defense arguments that the case should be thrown out because Markle did not cause the death of his daughter, as he couldn't foresee the SUV would go through the ice when there were no warning signs in the area, and that thousands of vehicles and ice shacks are on the ice every winter. The fact that he had been drinking before the accident, they argued, is irrelevant.

But Quam said that despite Markle's claim that people drive on the ice all the time, his motivation could have been to avoid a drunken-driving arrest.

"With two infant children and an objecting wife in the vehicle with him, the 'doing it because it would be fun' scenario seems unlikely and the 'doing it to avoid apprehension' scenario becomes much more plausible," the judge wrote.

Abby Simons • 612-673-4921