A defendant’s refusal of drug treatment in a prior case cannot be used to exclude him from a Proposition 36 program in a different case. Appellant pled no contest to possession of methamphetamine with a provision he would be granted probation and referred for drug treatment under Proposition 36. Based on two past unsuccessful attempts at treatment in prior cases, the probation department deemed appellant ineligible for Proposition 36 treatment, and the trial court found him unamenable to drug treatment in the present case. At sentencing, the court denied his request to be reinstated in the Proposition 36 program. Held: Reversed. Although appellant’s deletions from Proposition 36 programs in the two earlier cases were refusals of drug treatment under Penal Code section 1210.1, subdivision (b)(4), those failures do not operate as refusals in future cases. Any other interpretation would be at odds with the intent of Proposition 36, which anticipated that such offenders may falter in their recovery and thus gives offenders several chances at probation before imposing jail time. There was also no clear and convincing evidence appellant was presently unamenable to any form of drug treatment, as is required for exclusion under section 1210.1, subdivision (b)(5).