Prosecutor ordered trooper's breath test withheld

The Vermont Attorney General's Office was behind a decision to withhold from the public the breath test result of a Vermont State Police trooper suspected of driving while under the influence while patrolling in Rutland County.

Gov. Peter Shumlin said the investigation was forwarded to the office of Attorney General William Sorrell and a decision was made there — not with Vermont State Police — to withhold details about the alcohol test for Trooper Eric Rademacher.

"I was concerned that this was being handled differently by state police," Shumlin told the Burlington Free Press on Friday.

Once he learned the case was out of the hands of state police, Shumlin said there was little troopers could do about following the department's public information policy.

State police resumed last fall releasing the results of breath tests in DUI cases involving Vermonters, but in this case the information about a public employee — who was on-duty — was shielded. The results of tests involving everyday Vermonters are released routinely.

EARLIER COVERAGE

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The Vermont Attorney General's Office is independent of the Governor's Office, which has established sweeping transparency standards since Shumlin administration was elected.

The Attorney General's Office says it is limited about telling the public about criminal cases due to rules of professional responsibility.

Shumlin took an extra interest in the case Thursday when the Free Press asked about the treatment Rademacher was receiving in his case, including the withholding of his breath test result. State police's public information policy mandates troopers release the breath tests when people are ordered into court or jailed in suspected DUI cases.

Shumlin assigned his press secretary Scott Coriell to investigate the discrepancy. Coriell said Friday he determined that, "The Attorney General's Office expressly asked" state police to withhold the breath test "before the information is public in court."

Rademacher, 27, of Mendon is due in Vermont Superior Court in Rutland April 13.

Rademacher's breath test was below 0.08 percent — the presumed level for intoxication — but a chemist needs to relate it back in time to show the level of alcohol in his system during the seven hours before he was put on paid leave.

Assistant Attorney General John Treadwell, chief of the criminal division, said he decided to personally issue the citation ordering Rademacher into criminal court in Rutland later this month instead of having the state police investigators.

"I have the authority to issue citations," Treadwell said.

Treadwell said he believes he is required to withhold certain details about the case, including the breath test under the rules of professional responsibility.

"I can't give that to you because ethically I am prohibited from releasing breath tests," Treadwell said.

If the state police investigating the case had been directed to serve the citation, Rademacher's alcohol test result would have been released under the department policy, Public Safety Commissioner Keith Flynn said Friday.

Most law enforcement agencies in Vermont subscribe to the belief that breath tests are public when motorists are either issued a citation ordering them into court or jailed on a DUI charge.

Through the years, Vermont State Police provided the results of breath tests, but stopped in 2013 during the arrest of another police officer — off-duty Burlington Deputy Police Chief Andi Higbee.

Higbee's lawyer, Brooks McArthur, released the dash cam video of the arresting officer in Franklin County and also noted that one of the two breath tests were below the presumed level of 0.08 percent. One was 0.077 percent and three minutes later it showed 0.083.

Higbee later pleaded no contest to negligent operation and paid a $500 fine. Higbee's arrest was part of "Sober Summer 2013." The Free Press uncovered a state police memo that required troopers to make a certain number of stops each hour if they were to continue to draw the overtime assignment in Franklin County.

State police continued to withhold breath tests results until last October when Commissioner Flynn reversed course. He was at odds with his boss, Gov. Shumlin, who campaigned on transparency and said he thought tests should be public.

Vermont Motor Vehicle Commissioner Rob Ide said at the time his department considered both the preliminary roadside breath test and the evidentiary breath test often done at police stations to be public.

While state police withheld breath tests for a year, numerous police departments, including in Winooski, Richmond and St. Albans have always made them public at the time of the arrest.

Police and prosecutors have sparred in Vermont over the release of public information in other kinds of cases — especially involving wrong doing by public employees.

Burlington Police Chief Mike Schirling opted to make public the arrest and jailing of a veteran Colchester police detective on heroin and drug charges in November. Federal prosecutors wanted the arrest withheld from the public until the now former detective Tyler Kinney faced a judge two days later.

Schirling maintained it was a case of credibility for his department to make it public immediately. He acknowledged it was rare to go against prosecutors, but wanted "to ensure that the public is fully informed as possible under the circumstances."

Defense waiting too

St. Johnsbury lawyer David Sleigh, who represents Rademacher, said he also is interested in the breath test of his client, but has been told nothing by police or prosecutors. He said he heard a possible breath test result from a reporter.

Sleigh said he has asked the Attorney General's office to see the state police investigation file, including a draft of the affidavit of probable cause to seek a DUI charge against the trooper.

"Not a thing and I have asked," Sleigh said.

He said under Vermont court rules he is entitled to information at arraignment, but often receives details ahead when he requests them.

Sleigh said the most recent request was made Wednesday by email and as of Friday afternoon there had been no response.

"He will be getting the information," prosecutor Treadwell later told the Free Press.

He said he was unsure when, but would be talking with the two prosecutors assigned to the case.

He said assistant attorney generals Evan Neenan and Sarah Katz will be prosecuting the DUI charge.

Three state troopers have been involved in the Rademacher investigation, including two co-workers at the Rutland barracks: Sgt. Todd Wilkins, a patrol commander, and Trooper Seth Richardson. Detective Sgt. Mike Kamerling, who is assigned to Chittenden County, also is working on the investigation.

Wilkins ordered a dispatcher to call out Rademacher from home to respond to a two-car crash in Killington about 4:35 a.m. March 2, according to Vermont State Police records obtained by the Burlington Free Press. Wilkins later came on duty about 8 a.m.

It took Rademacher about 45 minutes to drive from his home in Mendon to the adjoining town of Killington to investigate the two-car crash on U.S. 4.

State police, at the request of the Attorney General's Office has withheld information about the crash. Lt. Barbara Zonay said that the occupants of the two cars are potential witnesses in the criminal case against Rademacher.

State police also refused a Free Press public records request seeking the dash cam video from Rademacher's state police cruiser that he was operating on March 2.

After being called out for the accident, Rademacher remained on duty until about noon when he was placed on paid administrative leave by Flynn, the state's public safety commissioner.

Vermont State Police had 30 days to file its investigative report from the two-car crash in Killington with the Vermont Department of Motor Vehicles. The DMV said Friday afternoon it was still waiting for the report.

Contact Mike Donoghue at 660-1845 or mdonoghue@freepressmedia.com. Follow Mike on Twitter at www.twitter.com/FreepsMikeD.