A drunken driving charge against an off-duty Vermont State Police trooper in Rutland has been dropped, with the prosecutor strongly criticizing the actions of two officers involved in the case, including the trooper’s girlfriend who was a city officer at the time.
According to the prosecutor, one of the officers even told the off-duty trooper that he could administer his own roadside breath test.
A later roadside breath test showed the off-duty trooper had a blood-alcohol content twice the legal limit.
But still the officers let him back up his pickup truck from the road into a driveway where he hit a tree or brushed up against shrubs, depending on which officer’s account is to be believed.
Though 33-year-old Craig Roland, a trooper assigned to the Rutland barracks, was arrested in January on a drunken driving charge, the case was dismissed before making it through criminal court.
Documents uncovered in a recent public records request reveal why, pointing to contradictions, conflicts and apparent “deferential” treatment for the trooper from the officers involved.
Stacy Graczyk, a state traffic safety resource prosecutor, wrote a letter in March to Rutland City Police Chief Brian Kilcullen, outlining the several reasons behind her decision to toss the DUI case.
“In light of all of the above,” Graczyk ended her six-page letter to the chief, “the state has no choice but to dismiss this case.”
She wrote that the decision was made after reviewing statements from city officers Misty Klementowski and Avery Schneider, identified in the letter as Roland’s girlfriend.
Those statements, according to the prosecutor, revealed many problems with how the case was handled, including the lack of documented observations of intoxication before a roadside breath test was eventually administered, like smelling of alcohol or having bloodshot eyes.
But that wasn’t the only flaw, or even the biggest one, according to the prosecutor
“Even if the state could show additional indicators of impairment such as those noted above,” Graczyk wrote, “the fact that Roland was treated so differently than what would be expected in this situation would be damaging for the officers’ credibility in front of a jury.”
The prosecutor added, “The contradiction between the two officers’ accounts, possible omission of key facts by Officer Klemetowski and the deferential treatment Roland received presents hurdles the state would be unlikely to overcome.”
Rutland County State’s Attorney Rose Kennedy said this week that because Roland was a law enforcement officer within Rutland County, she conflicted out of the case and referred it to Graczyk, a prosecutor from outside the county.
Kennedy added that she is working to determine if she will issue a “Brady,” or “Giglio,” letter to any of the officers involved. Those letters are sent to defense counsel in the county to alert them of potential credibility issues with an officer.
Other records obtained by VTDigger in recents weeks have revealed that Kennedy wrote such letters about two detectives in the Rutland Police Department and sent them to defense counsel.
Kennedy said she recently reached out to Kilcullen, Rutland’s police chief, seeking results of any internal investigation regarding the dropped DUI case, but had not yet heard back.
The events leading to Roland’s arrest played out during the early morning hours of Jan. 6. At that time, Klementowski and Schneider were on Deer Street in Rutland as they patrolled as part of the enforcement of the winter parking ban on city streets.
Klementowski served as the field training officer for Schneider, who was in her probationary period as a new officer.
During that patrol, the prosecutor wrote in her letter, Klementowski spotted a truck around 3 a.m. that had parked on the road in front of an apartment on Deer Street. Schneider recognized the vehicle and told Klementowski it belonged to Roland, her boyfriend.
The officers pulled behind the truck and Roland and Brendan Reilly, who had been a city officer but resigned before this incident took place, came out of the apartment where Reilly lived.
All four talked, and Klementowski saw that Reilly appeared “highly intoxicated,” according to the prosecutor’s letter. Roland told the officers he was driving Reilly to Cumberland Farms to buy Reilly chewing tobacco and possibly beer.
Klementowki and Schneider then continued with their patrol.
About two hours later, at 5 a.m., Schneider asked Klementowki to drive by the Deer Street apartment again since Roland had not been responding to her texts.
Outside the apartment, Roland’s vehicle was again parked on the road with the engine running and Schnieder pulled the cruiser up so it was parallel to Roland’s Chevy Silverado.
Both officers saw Roland in the driver’s seat and Reilly, who was in the passenger seat, got out, according to the prosecutor’s letter, and walked “unsteadily” to the apartment. Roland told the officers that Reilly was “wasted.”
The two officers and Roland continued to talk.
Grayzk wrote that the sworn affidavits in the case from Klementowski and Schneider detailed the continued interaction they had with Roland, though at times in differing versions.
Klementowski wrote that she asked Roland if he felt safe to drive, and he replied that he did, and that he was heading home.
“I did not feel Roland was safe to drive based on Officer Schneider saying he was drunk and because Roland would not make eye contact with us/me,” Klementowski wrote.
Schneider wrote in her affidavit, “I asked Officer Klementowski what she thought and she informed me that she could not tell if he was intoxicated or not, and that she hadn’t talked to him in a long time so she was unsure. I told her I couldn’t tell if he was OK or not.”
Schneider added that Roland’s voice seemed “odd,” though he did have chewing tobacco in his mouth and she had never spoken to him when he had that in his mouth.
The prosecutor, in her letter stating her reasons for dropping the case, wrote that avoiding eye contact or sounding “odd” are “insufficient information” to show that Roland was impaired or to move ahead with asking him to get out of the vehicle and do field sobriety exercises or take a roadside breath test.
“As to the affidavits and accounts of the two officers,” Graczyk wrote, “Officer Schneider never mentions a ‘lack of eye contact’ in her affidavit, nor does she indicate that she ever told Officer Klementowski that Roland was drunk as Klementowski states in her affidavit.”
The prosecutor added, “Whether Officer Schneider knew Roland to be drunk and how she knew this is a key piece of evidence. The contradiction between the two officers’ accounts — who are the state’s sole witnesses — would be damaging to the case and undermines the credibility of the officers.”
Also, Klementowski wrote in her affidavit that she asked Roland to take a roadside breath test and he declined.
Meanwhile, Schneider wrote in her affidavit that she told Roland her shift ended at 6 a.m. and she could pick him up then.
“Officer Klementowski advised that Roland could administer the test to himself and he could look and decide if he wanted to wait for me to pick him up,” Schneider wrote.
“I asked Roland if I could administer the PBT because I had not done one in my training yet,” Schneider added. “Roland refused the test again. Officer Klementowski advised that I could use the practice and asked Roland again if he would provide a PBT. Roland agreed to the test.”
At the point the roadside breath test was administered, the prosecutor wrote in her letter, there was an “insufficient” basis to ask for it based on the affidavits, lacking documented observations by the officers such as watery or bloodshot eyes or odor of alcohol.
“If at least some of these observations of impairment had been made, there would have been enough evidence to support an exit order and a request for FSEs/PBT based on an articulable and reasonable suspicion of a crime,” Graczyk wrote.
“As well,” the prosecutor added, “any ability of the state to have further developed or claimed that Roland was impaired was compromised and undermined by the officers’ highly unusual actions.”
A defense attorney, according to Graczyk, would likely claim the officers’ actions showed that they did not suspect Roland was intoxicated because if they did and had evidence of a crime, they would have never agreed to just let him go and wait for a ride.
Kilcullen, the police chief, said in January, shortly after the incident, that a roadside breath test showed Roland had a blood-alcohol content of 0.189, more than twice the 0.08 legal limit for driving in Vermont.
The police chief added then that Roland did not take an evidentiary breath sample back at the police station.
According to Klementowski’s affidavit, after taking the roadside breath test, Roland said he was going to park the truck.
Schneider, in her affidavit, wrote that she told Roland to move his truck into the driveway, adding that Klementowski told Roland to back in and told her to “pull up the street to the next driveway and turn the cruiser around.”
At that point, according to the prosecutor, “Any case the state may have had was irreparably damaged at this point by both officers directing Roland to further operate his vehicle.”
The prosecutor also pointed to more inconsistencies in the officers’ statements,
For example, Graczyk wrote, Klementowki stated in her affidavit that she saw Roland reverse his vehicle from Deer Street into a tree on the fence line of the driveway, resulting in damage to the driver’s side rear bed of the truck.
Schneider’s affidavit stated she saw Roland back up into the driveway, brushing up against some short evergreen bushes on the passenger side, before pulling his truck forward and then in reverse again when the vehicle brushed some tree branches over the fence on the driver’s side bed of the vehicle.
“Officer Klementowski and I checked the vehicle and surroundings for damage,” Schneider added. “We did not see any noticeable damages to the branches or vehicle. However I did observe brush marks in the dirt on the vehicle on the bed portion of the driver’s side.”
In addition, according to the prosecutor, Klementowski wrote in her affidavit when the truck’s driver side door was ajar she saw several open cans of Sam Adams beer up front near the driver’s seat and the passenger’s seat.
Schneider wrote in her affidavit that she saw open Dale’s Pale ale beer cans on the floor of the passenger side of the truck.
“As with the previous contradictions and/or omissions,” the prosecutor wrote to the police chief, “these are damaging to the credibility of the officers and thus, the State’s case.”
Klementowski wrote in her affidavit that while she was interacting with Roland, Schneider seemed “very bothered” by what was happening. Schneider was able to get the keys to the truck and told Roland to go back into the apartment, Klementowski wrote.
After returning to the police station, Klementowski gave the shift leader the results of Roland’s preliminary breath test.
That shift supervisor and two other city officers went to the Deer Street apartment and took Roland into custody, Klementowski wrote in her affidavit. At the station, the officer added, she processed Roland for drunken driving.
VTDigger has made a public records request to Rutland City Police, seeking records related to the case.
Court records in Roland’s case have been sealed.
“We are evaluating your records request with that in mind,” Kilcullen wrote in an email Thursday to VTDigger in response to the public records request.
Rutland criminal court stated it had no record of a criminal case involving Roland.
Graczyk, the prosecutor who works out of the Addison County state’s attorney’s office, said Thursday that state statute precluded her from saying if a criminal case even existed, much less confirm whether a case had been dismissed.
The police chief did state that his department has also looked into the matter.
“An IA was conducted,” Kilcullen wrote, “and we don’t disagree with the findings of the Addison County SA.”
According to Kilcullen, Schneider resigned her position with the city police department in July “for reasons unrelated to this matter.”
Contact information for Schneider was not immediately available Thursday.
Klementowski, Kilcullen stated, is still employed by the city police department.
“The city is currently considering what, if any, discipline is warranted,” the police chief added.
Klementowski did not return a message Thursday seeking comment.
Adam Silverman, a state police spokesperson, stated in an email Friday that Roland had been placed on administrative leave Jan. 6 and returned to work March 21.
The case was dropped around that time.
A call to the Rutland barracks seeking to speak to Roland was transferred to a voicemail and was not returned.