This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2012).

STATE OF MINNESOTA

IN COURT OF APPEALS

A13-2361

State of Minnesota, 

Respondent, 

vs. 

Jonathan Lawrence Markle, 

Appellant

Filed November 3, 2014

Affirmed

Worke, Judge

Concurring specially, Cleary, Chief Judge

Hennepin County District Court

File No. 27-CR-13-4020

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County 

Attorney, Minneapolis, Minnesota (for respondent)

Paul Engh, Minneapolis, Minnesota; and

Joseph S. Friedberg, Minneapolis, Minnesota (for appellant) 

Considered and decided by Worke, Presiding Judge; Cleary, Chief Judge; and 

Reyes, Judge. 

U N P U B L I S H E D O P I N I O N

WORKE, Judge

Appellant argues that the district court erred in denying his motion to suppress the 

results of a post-accident blood test, because no exigent circumstance existed which 

would provide an exception to the Fourth Amendment’s warrant requirement. We affirm. 
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FACTS

On January 18, 2013, appellant Jonathan Lawrence Markle went to a restaurant on 

Lake Minnetonka with his wife and two young daughters. Markle consumed alcohol 

while there. While driving home, Markle decided to take a shortcut home across the 

frozen lake, though his wife cautioned against doing so. Under the bridge connecting 

Priest and Halsted Bays, the ice broke and the vehicle sank. 

Witnesses called 911 at about 5:08 p.m. After Markle’s wife and older daughter 

were rescued from the water, Markle remained submerged while attempting to rescue his 

younger infant daughter from the submerged vehicle. Rescuers arrived a few minutes 

later and immediately commenced efforts to rescue the infant. Among the rescuers was 

Hennepin County Sherriff’s Deputy Adam Moore, who would initiate the investigation 

following rescue efforts. The infant was recovered from the water at 5:24 p.m. and 

rushed to the hospital. Efforts to save her failed and she died three days later. 

While waiting for ambulances, Markle admitted to Orono Police Officer Kyle 

Russeth that he had consumed alcohol and that he was the driver of the vehicle. Officer 

Russeth noted that although Markle smelled of alcohol, he did not exhibit other common 

signs of intoxication, such as slurred speech or bloodshot eyes. Officer Russeth later 

relayed this information to Deputy Moore. 

The ambulance carrying Markle left the scene at 5:32 p.m. and arrived at the 

Ridgeview Medical Center in Waconia at 5:45 p.m. The ambulance carried Markle from 

Hennepin County to Carver County. Deputy Moore drove to the hospital in his squad 

car, intending to commence his investigation. Upon arrival, Deputy Moore notified 

hospital staff of his presence, but he was asked to wait for doctor approval before 
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initiating contact with Markle. Deputy Moore waited 20 to 30 minutes before receiving 

authorization from Markle’s treating doctor at approximately 6:30 p.m. Markle admitted 

to Deputy Moore that he had two beers, and that he drank the last just before leaving the 

restaurant. 

After about five minutes transpired, Deputy Moore asked Markle to take a 

preliminary breath test; Markle declined. Deputy Moore then read Markle the implied 

consent advisory, including the portion of the advisory regarding accidents involving 

death or injury, which he does not normally do. Deputy Moore said: “Because I also 

have probable cause to believe you have violated the criminal vehicular homicide or 

injury laws, a test will be taken with or without your consent.” Markle asked to speak to 

his attorney, and did so for about 20 minutes. At 6:57 p.m. Deputy Moore again asked 

Markle if he would take the blood test. Markle replied, “I don’t have a choice, right?” 

Deputy Moore said, “Correct,” and the test was administered without a warrant. The test 

indicated a blood alcohol content (BAC) of .13. 

Markle was charged with criminal vehicular homicide. Markle moved to suppress 

the blood test results, arguing that no exigency justified the warrantless search. The 

district court denied Markle’s motion, and the matter proceeded on stipulated facts. See 

Minn. R. Crim. P. 26.01, subd. 4 (preserving pretrial issue for appellate review). One of 

the facts stipulated was that Markle did not consent to the blood test. He was convicted, 

and this appeal follows. 

D E C I S I O N

Markle argues that a warrant was required before administering the blood test 

because no exigent circumstance existed that would provide an exception to the Fourth 
4

Amendment’s warrant requirement. Consequently, he contends, the test results must be 

suppressed and his conviction reversed. 

When reviewing a pretrial ruling on the suppression of evidence in which facts are 

not in dispute and the district court’s decision is a question of law, the appellate court 

may independently review the facts and determine as a matter of law if suppression is 

required. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992). 

Under the Fourth Amendment, a warrantless search is reasonable only if it falls 

within a recognized exception. Missouri v. McNeely, 133 S. Ct. 1552, 1558 (2013). The 

presence of exigent circumstances is a recognized exception to the warrant requirement. 

Id. “‘[E]xigency in the drunk-driving context must be determined case by case based on 

the totality of the circumstances.’” State v. Stavish, 852 N.W.2d 906, 908 (Minn. App.

2014) (brackets omitted) (quoting McNeely, 133 S. Ct. at 1556). The natural dissipation 

of alcohol in the bloodstream, standing alone, is not an exigent circumstance. McNeely, 

133 S. Ct. at 1561. But such dissipation is one factor considered in a determination of 

exigency. Id. One “important factor” that contributes to an exigency is “the gravity of 

the underlying offense for which the arrest is being made.” Stavish, 852 N.W.2d at 909. 

Other relevant factors include the suspect’s need for medical care, transport across county 

lines, and time pressure created by the need to take action within two hours of the time of 

driving. Id. at 908-09 (citing in support of time constraints Minn. Stat. § 169A.20 subd. 

1(5) (2012) (stating that a person is guilty of driving while impaired (DWI) when his 

BAC is 0.08 or more as measured within two hours of driving)). 

This court’s recent opinion in State v. Stavish largely controls this case. In 

Stavish, emergency personnel responded to a single-vehicle accident in which one of the 
5

occupants of the vehicle had died. Id. at 907. The driver, Stavish, needed medical care 

and was transported by ambulance to a hospital in a neighboring county. Id. A state 

patrol sergeant was instructed to take a blood sample and drove to the hospital where 

Stavish was being treated. Id. The sergeant noted that Stavish “smelled of alcohol and 

determined that there was probable cause to suspect that [Stavish] had committed 

criminal vehicular homicide.” Id. Stavish moved to suppress the blood test results

following McNeely, and the district court granted the motion. Id. 

This court reversed. Id. at 909. The court concluded that an exigency existed 

because Stavish needed medical treatment, was transported across county lines, and 

because of the gravity of the underlying offense, “a probable criminal vehicular homicide 

charge, not merely a DWI charge.” Id. The court noted that more than 50 minutes had 

passed between the time Stavish had been driving and his blood drawn, which was 

concerning given Minnesota statutory timeframes. Id. at 908-09. 

All the aforementioned factors are present here; the delay in taking the blood draw

was even longer in this case. 911 calls were placed at 5:08 p.m. Due to rescue efforts 

and the need for medical attention due to hypothermia, Deputy Moore did not make 

contact with Markle until about 90 minutes after Markle had been driving. Deputy 

Moore was prohibited from doing so earlier due to the need to obtain approval from 

Markle’s treating doctor. Deputy Moore had only second-hand information about Markle 

prior to that time, and by the time Markle had consulted with his attorney nearly two 

hours had elapsed. The blood test was administered at 6:57 p.m., nearly two hours after 

the accident. 
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Such delays are important for two reasons. First, as Stavish recognized, the blood 

test evidence was “essential to a probable criminal vehicular homicide charge, not merely 

a DWI charge.” Id. at 909; see Minn. Stat. § 609.21, subd. 1(4) (2012) (requiring BAC

“of 0.08 or more, as measured within two hours of the time of driving” to support a 

charge of criminal vehicular homicide). Second, eight of nine justices in McNeely

recognized that “a significant delay in testing will negatively affect the probative value of 

[blood test] results.” 133 S. Ct. at 1561; id. at 1571 n.1 (Roberts, C.J., concurring in part 

and dissenting in part) (“When experts have worked backwards to identify a defendant’s 

BAC at the time he was driving, defense attorneys have objected to that evidence, courts 

have at times rejected it, and juries may be suspicious of it.”). 

Certainly, the factual fit between Stavish and this case is not perfect. In Stavish, 

there was the possibility that Stavish could have been airlifted to another medical facility, 

increasing the need to take a blood test without delay. 852 N.W.2d at 907. But this 

divergent fact is outweighed by the similarities between Stavish and this case.

In concluding that Stavish is largely precedential here, we note that it is best 

practice for law enforcement to obtain a warrant whenever practicable. A determination 

of exigency in cases such as this is “determined case by case based on the totality of the 

circumstances.’” Id. at 908 (quoting McNeely, 133 S. Ct. at 1556). Uncertainty of 

outcomes and lengthy court proceedings may be avoided with the signed approval, prior 

to administration of a chemical test, of a detached, neutral magistrate. But cases of

accidents, particularly those involving death or serious injury, are not routine. See 

McNeely, 133 S. Ct. at 1568 (describing the facts presented as “unquestionably a routine 
7

DWI case”). This case demonstrates the need for law enforcement to be able to proceed 

without a warrant in appropriate circumstances. 

The district court correctly concluded that the combination of factors here created 

an exigency, and therefore a warrant for Markle’s blood test was not required. 

Affirmed. 
CS-1

CLEARY, Chief Judge (concurring specially)

I agree with the majority that there was not enough time to obtain a warrant given 

the exigent circumstances found in this case, specifically the rescue efforts involving the 

submerged vehicle, the transport across county lines, and appellant’s subsequent medical 

treatment. I write a concurring opinion only to express my concern that law enforcement

should not be encouraged to rely on the exigent circumstances exception to administer 

warrantless blood tests except in limited situations, and also to express my belief that 

when relying on the gravity of the offense as an exigency, it is particularly critical that 

law enforcement also respect constitutional protections surrounding the individual who 

faces prosecution for that alleged grave offense. 

In my view, the majority’s suggestion to law enforcement that “it is best practice 

for law enforcement to obtain a warrant whenever practicable” is insufficient. The 

message to law enforcement should be that a warrant is always required under the Fourth 

Amendment, except in emergency situations where exigent circumstances exist. See 

Missouri v. McNeely, 133 S. Ct. 1552, 1558 (2013) (explaining that search warrants are 

required for blood tests “absent an emergency,” and a warrantless search is permissible 

“when the exigencies of the situation make the needs of law enforcement so compelling 

that a warrantless search is objectively reasonable under the Fourth Amendment”). 

The majority emphasizes that the blood test in this case was necessary, as it was in 

State v. Stavish, as evidence related “to a probable criminal vehicular homicide charge.”

State v. Stavish, 852 N.W.2d 906, 909 (Minn. App. 2014). In doing so, the majority 

emphasizes the gravity of the offense as an exigency in this case, and in doing so 
CS-2

suggests that consequently a suspect is entitled only to watered-down Fourth Amendment 

protections when the crime is a serious offense, like criminal vehicular homicide. This 

should not be the case. Instead, I believe that the gravity of the offense and potential 

punishment require, in addition, that the suspect’s constitutional rights are highlighted as 

well. See Schmerber v. California, 384 U.S. 757, 770, 86 S. Ct. 1826, 1835 (1966) (“The 

importance of informed, detached and deliberate determinations of the issue whether or 

not to invade another’s body in search of evidence of guilt is indisputable and great.”).

Finally, given the advances of modern communication, it should be easier than 

ever for officers to coordinate and apply for a warrant remotely. See Minn. R. Crim. P. 

36.01-.08 (permitting search warrants to be requested orally by telephone and issued 

remotely by judges). While obtaining a warrant was not practicable in this case, the 

worst message we can send law enforcement is that the failure to obtain a warrant will be 

overlooked as “not practicable” in most cases, particularly those cases involving alleged 

serious offenses. If gravity of the offense is allowed to stand alone as an exigency, or is 

overemphasized as an exigency, warrants will not be obtained when they are most 

needed, for I agree with the majority that “[u]ncertainty of outcomes and lengthy court 

proceedings may be avoided with the signed approval . . . of a detached, neutral 

magistrate.”