Dad charged in baby's death on Lake Minnetonka fights to keep out blood sample

Jonathan Markle sat in a hospital, shivering and in shock less than two hours after his SUV crashed through the ice on Lake Minnetonka with his 8-month-old daughter strapped inside, when a deputy asked him if he'd submit to a blood draw for alcohol testing.

"I don't really have a choice, do I?" he asked, according to testimony. He didn't, the deputy replied.

Markle submitted to the test, which showed he was legally drunk. His daughter died three days later. The criminal-vehicular homicide case against him now hinges on whether that blood sample can be used as evidence in the wake of a recent U.S. Supreme Court ruling that deemed warrants necessary for blood draws in most drunken-driving cases.

Markle, 41, of Minnetrista, was charged with the felony after he drove his SUV onto a frozen channel between Priests and Halstead bays Jan. 18 on the way home from Lord Fletcher's restaurant. When the vehicle broke through, his wife, Amanda, 31, and a second daughter, 2-year-old Isabelle, escaped from the submerged vehicle and were treated for hypothermia. His infant daughter, Tabitha, spent more than 15 minutes underwater before divers were able to rescue her.

According to testimony, Markle took the shortcut over his wife's protests. Transcripts of 911 calls show Markle refused to leave the sinking vehicle as he dove repeatedly into the dark, freezing water as he tried to save his daughter. Markle, who is free on bail, sat next to his attorneys and watched the proceedings.

In the motion hearing Tuesday, Markle's attorneys, Joe Friedberg and Paul Engh, argued to have the blood sample — the key piece of evidence in the case against him — thrown out. The sample revealed a blood alcohol level of 0.13 percent, well over Minnesota's legal driving limit of 0.08 percent. Prosecutor Deborah Russell countered that time was of the essence when the incident changed from rescue operation to criminal investigation the moment a police officer smelled alcohol on Markle's breath.

"If they had understood what the Constitution demands, they would have gotten a warrant," Friedberg argued to District Judge Jay Quam. "The reason they didn't do it is very clear: Nobody's told them to."

Under Minnesota's implied consent law, consent 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 a blood sample from Markle at Ridgeview Medical Center in Waconia.

"From what I knew of the law and the policies of our department, we could take it without his consent in this instance," he testified.

Russell argued that under the McNeely decision, every case needs to be analyzed on its own facts. In this case, she said the deputy was told by doctors to wait before he could speak with Markle, and after 30 minutes passed, Markle took 20 minutes to consult with an attorney. At 6:57 p.m., just shy of two hours after the first 911 calls, Markle submitted the sample.

During his arguments, Friedberg showed a document with the home and cellphone numbers of 61 Hennepin County judges, proving that it would not have been difficult to get a telephone warrant from a judge — particularly when one was on call that night. Russell countered that Moore would have needed to first speak with Markle before having enough information to get a warrant, all the while time was running out. An Orono police officer first smelled alcohol on Markle's breath, and Markle told him he had two beers that night.

"I'm not sure a judge would sign a warrant that said, 'I heard from another officer he'd been drinking,' " Russell said.

Engh compared the incident to two drivers, one over the legal blood alcohol limit and the other sober, each striking a large pothole that causes a crash and kills their passenger. Why, he argued, should one be held criminally responsible and the other not?

"I believe [Russell] would say because one is drunk and one isn't," Quam said.

"She would," Russell said.

"The cause is not the driver, the cause is the pothole," Engh countered. "That's the difference."

Quam is expected to rule on the motions later.