Wade

*700 Andrew M. Wade is an active duty member of the United States Army Special Forces Group and affiliated with the Naval Postgraduate School in Monterey. Wade seeks relief by writ of mandate from an order of respondent Monterey County Superior Court denying his request to enter a pretrial diversion program after he was charged with misdemeanor driving under the influence with a blood alcohol concentration above 0.15 percent.

At issue is the trial court's discretion to decide whether a defendant who is eligible to participate in pretrial diversion under the military diversion statute, Penal Code section 1001.80, is nevertheless unsuitable. We address whether the court in this case failed to exercise its discretion in conformity with the rehabilitative objectives of military diversion by relying on factors typically *701 employed in felony sentencing. We also address whether the court's decision to deny pretrial diversion for Wade based on the inherently dangerous nature of driving under the influence contravened recent changes to the statute to ensure that eligible military defendants charged with misdemeanor driving under the influence violations would be considered for the…