Pennsylvania’s New “DUI Following Diversion” Law — 75 Pa.C.S. § 3802(h)

In Commonwealth v. Shifflett, the Pennsylvania Supreme Court declared that the prior acceptance of the Accelerated Rehabilitative Disposition (ARD) program cannot be used to enhance criminal penalties for those who receive their second lifetime DUI offenses. The rationale behind the decision is that the acceptance of ARD is not considered a “prior conviction” for sentencing purposes, and therefore, any fact increasing mandatory minimum and maximum sentences must be proven to a jury beyond a reasonable doubt.

As a legislative fix to the Shifflett decision, Governor Shapiro signed House Bill 1615 into law on December 22, 2025. This legislation creates a new type of DUI offense entitled “DUI Following Diversion,” which enhances criminal penalties for those who are convicted of DUI offenses after receiving ARD for a past DUI offense.

DUI Following Diversion Defined

DUI Following Diversion is a new criminal charge effective December 22, 2025, and is located at Title 75 Section 3802(h) of the Pennsylvania Motor Vehicle Code. To establish guilt of this offense, the Commonwealth must prove the following elements beyond a reasonable doubt:

• The individual drove, operated or exercised physical control over the movement of a vehicle in violation of any of the following Subsections:

  • (a): DUI General Impairment

  • (b): DUI High Rate of Alcohol

  • (c): DUI Highest Rate of Alcohol

  • (d): DUI Drugs and Controlled Substances

  • (e): DUI as a Minor

  • (f): DUI in a Commercial or School Vehicle

• That the individual committed the violation within 10 years of completing the ARD program, or a substantially similar pretrial diversion program in another state or jurisdiction for a DUI offense or charge that is substantially similar to DUI in another jurisdiction.

The key feature in this new criminal charge is the requirement that the District Attorney’s Office prove that you have completed ARD or a pretrial diversionary program as an element of the offense.

ARD Acceptance and Completion Records

House Bill 1615 creates new record keeping processes in Pennsylvania. Previously, PennDOT would only document the acceptance of ARD and would expunge this record from your driving history after 10 years.

Section 1534(b.1) now requires PennDOT to document both the acceptance and completion of ARD. Courts are required to notify PennDOT when an individual completes the ARD program, and the record of completion will be recorded to a driving record. This record of completion cannot be expunged from a driving record until 12 years have passed from the date of ARD completion.

How does the District Attorney prove that I completed ARD?

Section 3802(h)(2-3) sets forth ways that the Commonwealth can attempt to prove the prior completion of ARD as an element of the DUI Following Diversion offense, including:

• A certified record from PennDOT under Section 6328 of the Vehicle Code;

• A record maintained by the Clerk of Courts;

• A substantially similar record from another jurisdiction; OR

• Any other competent evidence bearing on the question of whether or not the individual had previously accepted ARD or an out-of-state diversionary program for a DUI or similar offense.

In most cases, we anticipate that the prosecution will simply seek to introduce a copy of the Defendant’s certified driving record as evidence at trial. To keep the jury from hearing evidence of the Defendant’s past DUI, we anticipate that the court will “sever" the trial, with only the Judge hearing evidence of the prior ARD, and the jury deciding whether or not the Defendant committed the current DUI.

Grading and Penalties after a First DUI Following Diversion Conviction

Under the DUI Following Diversion statute, a person who commits a first offense of Section 3802(h) will receive the same mandatory minimum and maximum penalties as a person who commits a Second DUI Offense. Similarly, if you are convicted of the DUI Following Diversion offense and accrue another DUI, you will be receive the same mandatory minimum and maximum penalties as a person who commits a Third DUI Offense.

The Zuckerman Law Firm LLC can help

If you have completed ARD within the last 10 years and are charged with DUI Following Diversion, we can help. Being charged with DUI Following Diversion does not mean you are going to jail. Our firm has successfully secured house arrest and probationary sentences for repeat DUI offenders. For a free consultation call 412-447-5580.