The accused in a DUI case has the right under the Sixth and Fourteenth Amendments to present witnesses and evidence in his favor.  The Supreme Court upheld these rights in Washington v. Texas (1967), 388 U.S. 14, 19, 87 S.Ct. 1920, stating, “the right to offer testimony of witnesses, if necessary, is in plain terms the right to present a defense.  Just as an accused has the right to confront the prosecution’s witnesses to challenge their testimony, he has the right to present his witnesses to establish a defense.  This right is a fundamental element of due process of law.”

Given the above, how can a Judge prevent an accused drunk driver from presenting evidence  based on the rising alcohol defense or the retrograde extrapolation defense?  This is a fertile area for Constitutional challenge.  Until addressed it is yet another example of how DUI is treated differently in the system.