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The Acetone Defense

Full Disclosure: Newspapers should have no friends, as Joseph Pulitzer was famous for saying, but newspaper reporters sometimes do, and this reporter would like to count Peter Richardson among his. Also, this reporter has worked as a house painter and has some experience with the effects of the chemicals involved in this case. 

The first time Peter Richardson went to the venerable Water Trough bar on South State Street in Ukiah was back in the late 1950s or early 1960s (he doesn’t remember the exact year) when he was just a boy. His father had brought him out to California to see the redwood forests, and they stopped at the Water Trough for the bar's famous barbecue. In those days there was a drive-up window, so young Peter didn’t actually go into the now-defunct drinking establishment, but the barbecue was so memorable that he eventually returned as a young adult in the 1970s and has lived here in Mendocino County ever since.

The last time Pete visited the Trough was late last December when he crashed his big Dodge van through the wall and got himself eighty-sixed. Perhaps he was nostalgic for the old drive-through, or maybe he was drunk — because he certainly got himself a DUI shortly after he left — then again, maybe his brains were muddled by powerful chemicals from working in a paint booth that day. But whatever happened, Pete will never visit the Trough again, because the old watering hole has closed down for good.

Richardson
Richardson

Over the past two years, Mr. Richardson has been a regular feature, practically a fixture, at the Mendocino County Courthouse. He successfully defeated the District Attorney’s attempt to convict him of a substantial marijuana grow by showing he was a prostate cancer patient, and that his plethora of pot plants were necessary to his treatment; then he defeated a DUI charge, having been pulled over for failure to signal — but he was in a dedicated left-turn lane and didn’t legally have to signal — so the fact that he was intoxicated was thrown out of court, the stop having been made without probable cause, and therefore the DUI was the fruit of tainted tree, as the lawyers say.

Richardson then went off to Long Island, New York, to sit with the Board of Directors who disberse his family fortune, and while he was there he went out motorcycle riding with his old friend, pop star Billy Joel, for whom he’d recently crafted a stylish motorcycle gas tank. Shortly after his return from these diversions, he hit the wall at the Water Trough.

A few months ago, Pete took this second DUI to trial and got himself a hung jury, nine to three in favor of acquittal. The DA re-filed the case, and Pete, just last week, found himself in his third jury trial in less than two years.

Not everyone can sail through the justice system unscathed with the graceful celerity that Pete has managed. Most defendants wait a year or more to get to their first trial. It takes a certain flair, you might say, but whatever it is Pete Richardson has it — in spades. The guy's a kind of natural aristocrat, unfailingly the gent in even the most stress-inducing situations. Hiring first-rate lawyers doesn’t hurt, either. For his first two cases Pete benefitted from the estimable Keith Faulder, and for this last bout with The People, he has an ace DUI specialist, Bruce Kapsack, in his corner.

At the time of the Water Trough incident, Richardson was painting a motorcycle for Faulder, as a way of defraying his attorney fees. Richardson is highly skilled at his craft, as his celebrity clients will readily attest. But exposure to toxic chemicals is one of the drawbacks to the profession. Substances like lacquer thinner, which contains acetone, ethyl acetate, methanol, and toluene, all of which — especially the last —act directly on the central nervous system and are known to the State of California to cause cancer. These chemicals are also present in automotive finishes, and are part and parcel with the environment of a paint booth. (A booth, which is by definition a closed space, is used to keep dust and debris from settling on the wet paint).

These paints are built up in consecutive coats. Once a coat is applied, it needs time to dry before the next coat can be applied. In the meantime, the spray gun must be cleaned with the toxic lacquer thinner so it doesn’t also dry up and clog the spray gun. So, generally, a painter will apply a coat then clean his gun by spraying lacquer thinner through it, filling the paint booth with a mist of the nasty stuff. He'll take a break of a few hours or more before returning, thus getting himself a break from the fumes as the booth airs out and the paint dries.

It was, perhaps, during one of these breaks from noxious chemicals that Richardson repaired to the Water Trough. He'd been working without a respirator — which he should have known better than to do — but since he’d already been diagnosed with the Big C, maybe Pete didn’t care anymore, the damage already having been done to him and his days being more numbered than we think ours are.

Returning to Mr. Bruce Kapsack, esq.: This defense attorney specializes in cases involving acetone, toluene, et cetera. He works with a specialist out of Canada, a Mr. Jan Semenoff, and the dynamic duo are well-known for their seminars on this kind of case at defense attorney conventions all over the country. After his arrest on December 28th Mr. Richardson did some research and contacted Mr. Kapsack.

Now, there has been some idle speculation that someone at the Water Trough snitched Richardson off the last time he got popped for DUI after he'd rammed the Trough. But it came out in court that this was not the case. (The old Trough had many virtues, silent discretion primary among them. It was never a judgmental kind of establishment.) Maybe someone should have called Pete in, but no one did. Richardson fled down South State Street, heading for his home near Russian River Estates, and got on Highway 101.

CHP Officer Gerstenkorn was on patrol and, since Richardson’s van was traveling at 20mph below the speed limit, the officer took note. The van crossed the fog line by at least three feet at one point, the officer testified. Then the van took the exit without signaling, so Gerstenkorn pulled it over.

Approaching the vehicle, the officer smelled alcohol and noted the driver’s eyes were red and watery. When asked if he’d been drinking, Richardson admitted to having had two beers, St. Pauli Girls specifically. Did he have any alcohol in the vehicle? Richardson answered no, but the officer glanced through the window and saw a half-full bottle of India Pale Ale standing upright behind the driver’s seat. Perhaps, the driver wasn’t being truthful, so the officer conducted the standard Field Sobriety Tests.

And here’s something that speaks to the officer’s integrity: Gerstenkorn, a salty old trooper to judge by his gray hair and the hash marks in his sleeve, admitted that Richardson passed the FST in flying colors. So, one more little formality, the breath test (PAS), and Richardson could be on his merry way. However, the breathalyzer indicated that the subject had a blood alcohol content (BAC) of .14 — nearly twice the legal limit of ethanol (drinking alcohol) in his system. After a three-minute wait, the officer administered the test again, and the results were the same, so he had no choice but to arrest Mr. Richardson for driving under the influence.

If Officer Gerstenkorn noticed the damage to Richardson’s van from the incident at the Water Trough was never brought up. So despite the fact that there were pieces of the van’s grill among the debris from the collision at the Trough, the officer, the lawyers and the court, all appeared to be completely unaware of the incident — which again goes to show that the Trough minded its own business up to and including drunks running into it with their vehicles.

The prosecutor, Deputy DA Jessa Lee Mills, argued that Richardson was something of a professional drunk, that he was so inured to the effects of alcohol that he could appear “normal” even after a few cocktails or several beers, which is to say his level of tolerance was above average.

But Mr. Kapsack argued for defense that his client wasn’t drunk, that the reading of the breathalyzer was due to a rare instance of certain metabolisms that convert acetone into isopropyl alcohol, which is what we generally call rubbing alcohol. And this is where the expert witness, Mr. Jan Semenoff, came in.

The testimony of Mr. Semenoff was lengthy and highly technical, and, frankly, more involved and convoluted — especially on cross-examination — than this reporter could follow. Moreover, the prosecution had their own expert, Dr. Timur Durrani, of the University of California at San Francisco. Basically, Dr. Durrani concluded that the acetone-to-alcohol conversion occurred only in cases of diabetics and people on a certain and very uncommon diet; and that there had only been five or six such cases of these individuals with this kind of “reverse metabolism” in the whole of the available research.

The research was somewhat inadequate, Dr. Durrani admitted, because it is inherently unethical to expose people to acetone in order to study its effects. Animal tests (disturbingly) were also inconclusive, he said, because test animals were generally exposed to so much acetone that it was way out of proportion to what a human being could be expected to survive. But, he added, the effects of acetone were so dire that most people would become nauseated and dizzy by exposure to it that they would either get out of that environment or succumb to a state of coma, and eventually, death.

In closing, Ms. Mills said that the “reverse metabolism” defense was bogus; that only five or six cases had ever occurred; that those involved diabetics or people on debilitating diets, and that Richardson was neither on such a diet nor was he a diabetic. Mills then became emphatically personal towards the jurors, asking them if they were prepared to set such an outlandish precedent and let a drunk driver off on this “first ever” bogus defense.

Mr. Kapsack, in his turn, rose to inform the jury that Ms. Mills had just lied to them. He said that she knew very well that this wasn’t the first time a defendant had been acquitted on the reverse metabolism defense, and that Mills herself had lost that particular case.

Mills shot to her feet, shouting that Kapsack was out of line, demanding his comments be stricken, and a heated argument ensued. Judge John Behnke restored order in the court and told the jury that they were not to consider any case but the one before them.

Kapsack finished by telling the jury that there were instances of the reverse metabolism at roadblock checks for drunk drivers and, that while it was admittedly rare, such cases were on the record. He reminded the jury of Officer Gerstenkorn’s admission that Richardson showed no signs of mental impairment, that his client had been extremely polite and courteous to the officer, that there was reasonable doubt that prosecution had met their burden, and that they must therefore find Richardson not guilty of the charges: Count I, DUI; Count II, over the legal limit of .08 blood-alcohol content.

It was a complex case, a novel case, and the jurors themselves were left with a considerable burden in sorting it all out. The trial ended on Thursday, as they usually do — the courts having other matters to attend to on Fridays, and with the long Labor Day weekend ahead, there was no verdict available at press time.

However the case ends, we certainly hope that Peter Richardson’s legal problems have finally come to a close. He’s really not a bad guy, and shouldn’t have to spend his time fighting both cancer and consecutive legal battles. And one thing is certain: He won’t be drinking at the Water Trough anymore — no one will, for that matter — and that leaves very few bars left in the Ukiah area — a place where there was for the past 40 years and more a great many.

* * *

Postscript: Some time ago I came into the courtroom just as the Prelim for this case was ending. The courtroom was crowded with lawyers and defendants waiting their turn. Generally, the lawyers were all amusing themselves with their cellphones and whatnot, but when I arrived on this occasion they were in a state of barely contained hilarity; some of them bent over double with hands in their pockets from fits of laughter. Judge Behnke — who was grinning from ear to ear himself — had some difficulty restoring order. “You just missed some of the best quotes ever, Bruce,” attorney Jan Cole-Wilson told me. “You wouldn't believe what kind of defense Peter Richardson is planning!” Well, I didn't find out until the trial last week what that defense was, but, had I known at the time of the prelim, I wouldn't — as a former painter myself — have found it as ludicrous as the lawyers did. In my time I have seen painters exposed to lacquer thinner do some pretty crazy things. Even if you are not breathing the fumes, like someone would if they were using nail polish remover, the stuff can go right through your skin and get into your system. But the amount you get from cleaning a spray gun with it is hundreds of times more potent and results in all kinds of crazy behavior, and the cautions on the can it comes in warn how it works directly on the central nervous system. Also, I forgot to mention that Prosecutor Mills had brought a small bottle of nail polish remover to court for the jurors to sniff, but Judge Behnke wouldn't allow it to be passed round; nor would he allow the damn stuff to be entered into evidence and taken with the jurors into deliberations: the results would have been — well, we'll never know! But nail polish remover is nowhere near as potent as lacquer thinner. Mills had to submit a picture of it, instead.

Postscript#2: I wasn't at the Trough the day Pete hit the wall. I came in the next day and heard the story and saw the damage, and heard people say that Pete wan't his usual self that day. He is generally very composed, even when in his cups, and preserves an enviable equanimity towards confrontational and belligerent people — you'll get that in a barroom setting — when others of less gentlemanly fortitude would go to blows. Sure, he could've been intoxicated — hell, I once saw Bert Schlosser slam down his drink furiously (someone had said something about the county employees union that Bert didn't like) and stomp outside where he backed straight into the car parked behind him — I was waving my arms and yelling, “Stop, Bert, Stop!” But Bert crunched the car and roared off in a cloud of dust. Fortunately, the car body was some kind of plastic, and the big dent popped out after me and Roger got under the fender well and gave it a couple of kicks with the heels of our boots. The owner of that vehicle was never the wiser. So, sure, Pete could have been over the limit, but it would be out of character for him to get angry enough to drive like that — in fact, I've never seen Pete get mad, and I've seen him provoked to the point most people would get very mad. On the other hand, maybe I'm getting too sentimental to be a good crime reporter.

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