Pennsylvania has an Accelerated Rehabilitative Disposition (ARD) program which provides for pretrial diversion for accepted defendants. In exchange for avoiding the risk of conviction, the defendant agrees to supervision or treatment for a specified period of time. Successful completion can lead to dismissal of the charges, while a violation may result in reinstatement of the charges and a criminal trial.

Pennsylvania, like most states, also has recidivist sentencing provisions for repeat offenders. It has chosen to include a prior ARD acceptance in its definition of a prior conviction for purposes of its mandatory sentence recidivist drunk driving laws. The article explores the constitutionality of that choice.

This article concludes that the Due Process Clause prohibits consideration of an ARD acceptance as a prior conviction. The analysis has broader implications because it examines to what extent allegations of past misconduct must be shown to be reliable under the Due Process Clause before they may be considered against a defendant for sentencing purposes.