Concurring Opinion
Garrard, J.Glenn’s presentence investigation report disclosed that he had been a drug user for approximately twelve years; that he had once submitted to treatment; and that he had then remained off drugs until subsequently sentenced to the reformatory. While at the reformatory he had recommenced use. This information gave the court reason to believe Glenn was a drug abuser and invoked the provisions of IC 1971, 16-13-6.1 (Burns Code Ed.)
Examination of that statute, however, clearly reveals that it was intended as a discretionary sentencing alternative available for certain qualified defendants.
Concern has been voiced over certain language contained in IC 1971, 16-13-6.1-17 and 18. These sections provide that where a court is advised the accused is a drug abuser, and the court finds the accused is eligible for the program, then “the court may advise him” that he may be placed on probation if he elects to submit to treatment. I believe the intent of this language is simply that the accused be advised that, even if he is willing to elect treatment, he may be placed in the program and he may not.1 Even if he elects treatment, the department may reject him or the court may determine *128that he is not a drug abuser or is not likely to be rehabilitated. In either such event, sentence is to be imposed. However, the legislative purpose, as clearly disclosed in the preamble of the act, is to make the program available to eligible defendants in recognition of the relationship between their abuse of drugs and their commission of criminal offenses. Whether the program itself may yet be deemed successful or unsuccessful is not before us.
I therefore conclude that the statute is invoked when, prior to the imposition of sentence, the trial court has reason to believe the defendant is a drug abuser, either because the defendant says so or because of other information formally brought to the court’s attention. It must follow that it becomes an abuse of discretion for the court then to totally ignore the statute by making no further inquiry. To hold otherwise rejects the strongly announced legislative purpose of this act. See, People v. Robinson (1973), 12 Ill. App. 3d 291, 297 N.E.2d 621; People v. Ortiz (1964), 61 Cal. 2d 249, 37 Cal. Rptr. 891, 391 P.2d 163; Judge White’s dissent in Thurman v. State (1974), 162 Ind. App. 576, 320 N.E.2d 795.
In McNary v. State (1973), 156 Ind. App. 582, 297 N.E.2d 853, this court concluded that when the trial court has reason to believe or is advised by the defendant that he is a drug abuser, and it is shown that the defendant is eligible for the program and wishes to elect treatment, it is error to fail to send him to the department for examination. The opinion indicates that the eligibility of the accused to make an election and his desire to elect were demonstrated after sentence had been imposed. However, it is unclear whether the court, before imposing sentence, had reason to believe the defendant was a drug abuser.
Since my reading of IC 1971, 16-13-6.1-18 limits its applicability to those instances where the court is advised or has reason to believe the defendant is a drug abuser before sentence is imposed, I believe McNary should be limited to those circumstances. However, in Glenn’s case, the court abused its discretion when it totally ignored the statute after the *129presentence investigation report disclosed substantial reason to believe that Glenn was a drug abuser.
The case must therefore be remanded for consideration of the application of the alternative provided by IC 1971, 16-13-6.1.
. He must also be advised of the consequences.