September 24, 2017
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Lawyer: Fatal Bar Harbor crash ‘a tragedy, not a crime’

By Nick Sambides Jr., BDN Staff
Updated:

ELLSWORTH, Maine — A Virginia tourist accused of hitting and killing a Bar Harbor woman told authorities he was sleep deprived from driving, and he may have been suffering from a medical issue during Tuesday’s fatal crash, officials said.

Justin A. Shell, 36, of Harrisonburg, Virginia, “appeared to be having a seizure” when Bar Harbor police found him in his pickup truck “seconds” after it hit and dragged Connie Birkenmeier, 76, of Bar Harbor in the parking lot of The Chart Room restaurant off Route 3, according to an affidavit filed Wednesday in Hancock County District Court.

The seizure showed that police lacked probable cause to arrest Shell, who is charged with manslaughter, reckless conduct with a dangerous weapon — the truck — and driving to endanger, according to Shell’s attorney, John Z. Steed of Blue Hill.

“This is a tragedy, not a crime,” Steed told Judge Michael Roberts during Shell’s first appearance in Hancock County District Court on Wednesday.

“I don’t think a reasonable person, based on the evidence that the state has presented, could find a crime has been committed,” Steed added.

Deputy District Attorney Toff Toffolon conceded that a medical issue might have contributed, but said that Shell, who was vacationing in Maine and has no apparent criminal record, was overtired to the point of being negligent.

Steed disputed that Shell was negligent or even overtired. He called the seizure a sudden-onset medical problem, for which Shell could not be blamed.

But the prosecutor said Shell told police he was sleep-deprived after driving alone since Saturday from Virginia to Fort Kent and then Bar Harbor — which Toffolon estimated as more than 1,300 miles — and stopped only twice, in Connecticut and in the Fort Kent area, prior to the crash.

He was headed for Old Orchard Beach when the crash occurred, Toffolon said.

Steed estimated that Shell drove 1,250 miles over the four days, making the two stops, but also hiking on Cadillac Mountain prior to the crash — normal enough behavior, and certainly not negligent, Steed said.

Shell’s having worked nights for many years and having left Virginia to go to Maine at the end of an overnight shift made it impossible for him to not be overtired, Toffolon said.

Roberts found probable cause for the arrest because Shell drove many hours without resting. “That’s a dangerous decision,” he said.

Roberts set Shell’s bail at $5,000 and as a bail condition ordered that Shell not drive in Maine.

Manslaughter is punishable by up to 30 years in prison and a fine of up to $50,000. The other charges carry punishments of up to five years’ imprisonment and a fine of up to $5,000.

Shell is due in court on Oct. 12.

 

Correction: A previous version of this story misstated the court in which the affidavit was filed.


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