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.

The article concludes that this one-sided statutory framework is unconstitutional when applied to deny the defense material, favorable testimony. Not only does the statute violate a defendant’s rights, it also violates separation of powers. Congress has no authority to delegate a judicial function, determining cases and controversies fairly, to an interested party, the government. The Act uniquely gives a party exclusive control over an important trial issue concerning the admissibility of evidence.