Man charged in fatal July 4 crash had earlier felonies

PIERRE, S.D. (KELO) -- The man accused of driving while impaired and killing a nine-year-old girl in a four-wheeler crash north of Pierre on July 4 has a history of criminal activity. According to court documents, Zachary James Allan Berger, 38, of Indianola, Iowa, had previously been convicted in his home state of first-degree burglary, domestic abuse assault, and possession of a firearm by a felon. A grand jury indicted Berger on Wednesday on a long list of criminal charges after hearing secret testimony from four law enforcement officers. Magistrate Judge Tara Adamski set bond at $50,000. Court records in the matter contain an affidavit from South Dakota Highway Patrol Trooper Dillon Axtell, who responded to the crash scene near Spring Creek State Recreation Area, a popular spot for sportsmen and boaters located north of Oahe Dam on the east side of the Missouri River. Trooper Axtell said he saw the 2008 Polaris Ranger 700 lying on its side along Spring Creek Road and many empty beer cans scattered around. He saw Hughes County Sheriff's Deputy Zane Lewis performing CPR on the nine-year-old victim, Madlaine-Rose Berger. She was later pronounced dead at the scene. Trooper Axtell stated that he found and met with the 16-year-old male teen who had been riding in the bed of the four-wheeler at the time of the crash, which occurred around 2 p.m. Deputy Lewis administered a preliminary breath test for alcohol, and Berger blew 0.08%, according to Trooper Axtell. South Dakota law says no person may drive or be in actual physical control of any vehicle while there is 0.08% or more by weight of alcohol in that person's blood. Trooper Axtell then met with Berger in the front seat of the Highway Patrol vehicle. The trooper stated there was a strong smell of alcohol. "Mr. Berger admitted to having a double shot Bloody Mary at a Fort Pierre bar at approximately 1230 hours," the trooper wrote. Trooper Axtell administered a second breath-alcohol test, and Berger this time blew 0.104%. "Mr. Berger then stated that after the first PBT, he went back inside and drank a couple more beers," the trooper wrote. Berger was later taken to Pierre for two blood draws. A note on one says they were administered one hour apart. Results of those draws didn't appear to be part of the criminal file yet as of Thursday morning. A bail-conditions worksheet regarding Berger that was in the court file stated, "Extensive criminal history--including 2X Escape." It also stated that Berger was on probation for an Iowa felony and indicated that the Iowa probation had been revoked. Justin Bell of Pierre was assigned as Berger's court-appointed defense attorney. Berger was indicted on the following charges: Berger's next court appearance is set for July 28. State Attorney General Marty Jackley said his office is prosecuting the case and will ask the court to consider Berger to be a habitual offender. Under South Dakota law, that means Berger could face, if convicted, a sentence of life in prison and a $50,000 fine.