Jonathan Markle dived three times below the water's dark, cold surface of the Lake Minnetonka channel in a frantic effort to save his baby daughter trapped inside the family's sunken sport-utility vehicle moments after it had broken through the ice.

He came close, his attorney said Friday. On the first two passes, he was unable to get 8-month-old Tabitha's car seat unhooked. On the third, his hands just wouldn't work anymore. Tabitha spent more than 15 minutes underwater Jan. 18 before divers pulled her out. She died three days later.

"The system can't punish him more than he's already been punished," attorney Joe Friedberg said Friday, moments after Markle's first court appearance to respond to a single count of felony criminal vehicular homicide.

His hands folded in front of him, Markle, 41, of Minnetrista spoke clearly and quickly as he recited his name and address from behind a partition for jail inmates. His appearance came the day after the Hennepin County attorney's office filed the charge alleging that he was drunk and negligent when he drove the SUV onto the frozen channel with his family inside, leading to Tabitha's death. His wife, Amanda, 31, and a second daughter, 2-year-old Isabelle, escaped from the submerged car and were treated for hypothermia.

Jonathan Markle's blood-alcohol level was 0.13 two hours after the accident, the charges say. The legal limit to drive in Minnesota is 0.08 percent. Markle told police he'd had two beers at Lord Fletcher's restaurant before he drove his family onto the ice and into the channel between Priest's and Halstead bays under the County Road 44 bridge, where the SUV broke through. Friedberg said Markle had taken the shortcut over the channel before.

Prior alcohol offense

Markle did not appear to have supporters present in the courtroom, but glanced throughout the gallery as Assistant Hennepin County Attorney Michael Burns requested bail be set at $150,000 or $50,000 with conditions, including that Markle stay away from alcohol.

"Obviously this is a case that resulted in death, so we do have concern about that," he said, adding that Markle was charged with a prior alcohol- related offense.

Friedberg countered that Markle has no serious criminal record and is employed, a homeowner and close with his family.

"There's absolutely no threat he's going anyplace and he's certainly not a threat to the public," Friedberg said.

Bail set at $10,000

Judge Toddrick Barnette set the bail at $10,000 and ordered Markle not to use alcohol or illegal drugs. Markle remained in jail late Friday. Friedberg said that he hasn't discussed the case at length with Markle, but said both anticipated the charges and the warrant for his arrest.

Markle, a paralegal, turned himself in Thursday night. Friedberg said he does not dispute the allegations in the charges against Markle.

"I can't take any issue conceptually with charging a person under these circumstances," Friedberg said. "I would probably take a very large issue with ... punishment, but that comes from the other side."

Friedberg said he's waiting to discuss the case more fully with Markle to allow the family time to grieve. He plans to look into whether Markle's blood draw was legal because it was done without a warrant -- currently a hotly debated legal issue in Minnesota and across the country. Although charges say Markle "submitted to" a blood draw, "it sounds like that's a chosen word, in the face of everybody knowing what's being debated," he said.

Giving the family time

Markle's next court appearance is scheduled for March 4. In the meantime, Friedberg said, he will balance his duties with giving the family space.

"It's just something I don't think any of us can comprehend," he said. "It's bad enough if a person loses a child; I don't know how to compound that by being the one at fault for losing the child."

Abby Simons • 612-673-4921