AUBURN — A man charged with operating under the influence on three separate occasions but not once failing a blood-alcohol test presented an unusual case, according to both the prosecutor and the man’s defense attorney.

In the latest incident, David Witas, 41, of Lewiston rammed a sport utility vehicle into the bathroom of a Ruby Tuesday restaurant on July 25 and allegedly admitted to police that he had been inhaling Dust Off from an aerosol can.

According to a police affidavit, Witas admitted that he had just “huffed the dust remover in the (Walmart) parking lot and then attempted to drive home. He couldn’t clearly recall how he ended up in the wall of the restaurant.”

Given the circumstances, prosecution and defense came to a plea agreement Friday.

“It would appear Mr. Witas was impaired; he was impaired by the act of huffing,” Assistant District Attorney Nicholas Worden said. “There is no ability to chemically detect that (substance) as we sit here today. That is the reason why the plea agreement came together.”

Defense lawyer Henry Griffin said he would have challenged any state assertions at trial that the three OUIs all involved huffing.

“There’s some difficulty people may have with this,” Griffin told the court. “We spent a lot of time negotiating the case and looking at the evidence. It’s the nature of the case that’s driven this sentence.”

The agreement drops one operating under the influence charge. Witas was sentenced in Androscoggin County Superior Court to two years in prison with all but six months suspended for the two other pending OUI charges.

According to court records, Witas was involved in a traffic stop in Lewiston on Dec. 13 and charged with criminal OUI and operating beyond license condition or restriction. On Feb. 24, he was involved in an accident with another vehicle and charged with criminal OUI, leaving the scene and violating conditions of release.

After that accident, Worden said, an officer found “a can of compressed air in the car, but there was no tie-in. He had moderate symptoms of beer on his breath.”

Both times Witas’ blood-alcohol level was below the 0.08 legal threshold, Worden said.

In the July 25 crash at Ruby Tuesday in Auburn, Witas was charged with criminal OUI, violating condition of release and operating after suspension.

Under the agreement, Witas was sentenced to 30 days in jail — to be served concurrently — on some lesser charges. His driver’s license was suspended for six years and he was fined $2,200.

Griffin said Witas would also spend two years on probation during which time he could get treatment.

Worden said he got a stiffer fine and sentence in the plea agreement than if he’d taken the latter OUI case to trial and won.

It’s possible that the Secretary of State’s Office will strip Witas’ license for longer than six years, he said. Witas will serve his sentence at the Androscoggin County Jail, but any violations of probation would see him spend the rest of his sentence in state prison.

“From a public safety standpoint, he’s being kept off the road,” Worden said. “What it doesn’t do is send the type of message we would want to send. One would hope in the future there is a method and means to detect this chemical.”

Worden said he couldn’t seek restitution for the restaurant, but “Ruby Tuesday could certainly sue.”

Witas, who appeared in a blue jumpsuit before Justice Donald Marden, said he was an out-of-work metal fabricator with two children.

“I would like to sincerely apologize to everyone I have hurt,” Witas said, and to his family for the embarrassment.

Marden warned him: “Mr. Witas, you’re living on borrowed time operating a motor vehicle under any substance.”

kskelton@sunjournal.com

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