Opinion
FILES, P. J.
Appeal from an order dismissing a misdemeanor prosecution upon the ground that the defendant was not arraigned promptly after his arrest as required by Penal Code section 825. The appellate department affirmed, and, pursuant to rule 62, California Rules of Court, we ordered transfer of the case.
Defendant was arrested at 7:29 p.m. on Thursday, October 13, 1977, for being under the influence of a controlled substance, a misdemeanor violation of Health and Safety Code section 11550. He was arraigned the following Monday, October 17.
At that time the public defender was appointed counsel for defendant and a plea of not guilty was entered. Counsel for defendant filed a written notice of motion to dismiss the complaint for failure to arraign him without unnecessaiy delay in violation of Penal Code sections 825 and 849, subdivision (a). After a hearing, the motion was granted and the complaint was dismissed.1
Defendant did not offer any evidence in support of his motion. The People called the arresting officer who testified to the following effect:
The defendant was arrested at 7:29 p.m. on Thursday, October 13, 1977. Neither the arresting officer nor any other officer offered the defendant any kind of chemical test for the presence of narcotics in his system. The defendant did not request such a test.
The officer’s shift on Thursday was from 4 p.m. to midnight. He did not prepare his arrest report until the following day, and it was typed at 8:55 p.m. on Friday, October 14.
[430]*430The settled statement contains this explanation for the dismissal: “Since the defendant was not offered nor given the opportunity to get a urine test within a 72-hour period that this was a denial of due process and that the defendant was prejudiced by the delay in arraignment in that the defendant was not given an opportunity to present a defense.”
The pertinent part of Penal Code section 825 is “The defendant must in all cases be taken before the magistrate without unnecessary delay, and, in any event, within two days after his arrest, excluding Sundays and holidays; provided, however, that when the two days prescribed herein expire at a time when the court in which the magistrate is sitting is not in session, such time shall be extended to include the duration of the next regular court session on the judicial day immediately following.”
Subdivision (a) of section 849 states: “When an arrest is made without a warrant by a peace officer or private person, the person arrested, if not otherwise released, shall, without unnecessary delay, be taken before the nearest or most accessible magistrate in the county in which the offense is triable, and a complaint stating the charge against the arrested person shall be laid before such magistrate.”
The record supports the finding that the delay in arraigning defendant was unnecessaiy. The People do not dispute this. It is inferable that if the arresting officer had prepared and turned in his written report before going off duty on Thursday evening, the arraignment could have taken place on Friday rather than the following Monday. The critical issue here is whether, on the record made in the trial court, that delay justified a dismissal of the complaint.
The dismissal was not authorized by any California statute. Neither sections 825 nor 849 contain any language authorizing or requiring a dismissal of a prosecution by reason of delay in arraignment. Statutes on the subject of dismissal (Pen. Code, §§ 1381, 1381.5, 1382, 1389) require dismissal for certain delays after the arraignment or the commencement of the proceeding, but do not cover delay prior to arraignment or the commencement of the proceeding.
The failure of the arresting officer to do the paperwork necessary to cause the complaint to be filed at an earlier time reflects against the legality of the détention, rather than the legality of the subsequent prosecution. Ordinarily, an illegal detention is not, by itself, a ground for a dismissal of charges. (In re Walters (1975) 15 Cal.3d 738, 753 [431]*431[126 Cal.Rptr. 239, 543 P.2d 607]; People v. Bradford(1969) 70 Cal.2d 333, 344 [74 Cal.Rptr. 726, 450 P.2d 46].)
Dismissal of a criminal prosecution before trial on the ground of delay in arraignment is apparently a rare occurrence, as we have found no decisions of the Supreme Court or Courts of Appeal growing out of such a case.
In People v. Morse (1970) 4 Cal.App.3d Supp. 7 [84 Cal.Rptr. 703], the appellate department of the superior court reversed a municipal court order which had dismissed a misdemeanor charge on account of a lapse of six days between arrest and arraignment. The appellate court concluded (at pp. 9-10) that “whatever other remedies may be available to a defendant whose arraignment is unduly delayed, immunity from prosecution is not one of them.”
In arriving at this conclusion the Morse court found an analogy in People v. Wilson (1963) 60 Cal.2d 139 [32 Cal.Rptr. 44, 383 P.2d 452], and other cases holding that delay was not ground for reversal of the conviction without a showing of prejudice.
When prearraignment delay is urged as a ground of reversal after conviction, the applicable rule is that stated in People v. Combes (1961) 56 Cal.2d 135, 142 [14 Cal.Rptr. 4, 363 P.2d 4]: “A violation of a defendant’s right to be taken before a magistrate within the time specified by the law does not require a reversal unless he shows that through such wrongful conduct he was deprived of a fair trial or otherwise suffered prejudice as a result thereof.”
The rule has been cited without challenge in subsequent decisions. In People v. Wilson, supra, 60 Cal.2d 139, 153-154, the court used the Combes rule as an analogy in a discussion of post arraignment delay. The Combes statement was cited and followed in People v. Vick (1970) 11 Cal.App.3d 1058, 1068 [90 Cal.Rptr. 236], and as an alternate ground of decision in People v. Hill (1967) 66 Cal.2d 536, 551 [58 Cal.Rptr. 340, 426 P.2d 908]; People v. Stewart (1968) 264 Cal.App.2d 809, 814 [70 Cal.Rptr. 873], and People v. Norman (1967) 252 Cal.App.2d 381, 392 [60 Cal.Rptr. 609].
A dismissal would not remedy the officer’s error or redress the prearraignment detention. An automatic grant of immunity to the suspected offender would be nothing but a reprisal against the public at [432]*432large for the officer’s neglect. This is a sanction which our courts have declined to impose for illegal or excessive detention. (See, e.g., People v. Bradford, supra, 70 Cal.2d 333, 344.)
We therefore turn to the issue of prejudice. The language of the Combes decision indicates a burden upon the defendant to produce evidence of prejudice: “A violation . . . does not require a reversal unless he shows . . . prejudice as a result thereof.” (56 Cal.2d at p. 142.)
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Opinion
FILES, P. J.
Appeal from an order dismissing a misdemeanor prosecution upon the ground that the defendant was not arraigned promptly after his arrest as required by Penal Code section 825. The appellate department affirmed, and, pursuant to rule 62, California Rules of Court, we ordered transfer of the case.
Defendant was arrested at 7:29 p.m. on Thursday, October 13, 1977, for being under the influence of a controlled substance, a misdemeanor violation of Health and Safety Code section 11550. He was arraigned the following Monday, October 17.
At that time the public defender was appointed counsel for defendant and a plea of not guilty was entered. Counsel for defendant filed a written notice of motion to dismiss the complaint for failure to arraign him without unnecessaiy delay in violation of Penal Code sections 825 and 849, subdivision (a). After a hearing, the motion was granted and the complaint was dismissed.1
Defendant did not offer any evidence in support of his motion. The People called the arresting officer who testified to the following effect:
The defendant was arrested at 7:29 p.m. on Thursday, October 13, 1977. Neither the arresting officer nor any other officer offered the defendant any kind of chemical test for the presence of narcotics in his system. The defendant did not request such a test.
The officer’s shift on Thursday was from 4 p.m. to midnight. He did not prepare his arrest report until the following day, and it was typed at 8:55 p.m. on Friday, October 14.
[430]*430The settled statement contains this explanation for the dismissal: “Since the defendant was not offered nor given the opportunity to get a urine test within a 72-hour period that this was a denial of due process and that the defendant was prejudiced by the delay in arraignment in that the defendant was not given an opportunity to present a defense.”
The pertinent part of Penal Code section 825 is “The defendant must in all cases be taken before the magistrate without unnecessary delay, and, in any event, within two days after his arrest, excluding Sundays and holidays; provided, however, that when the two days prescribed herein expire at a time when the court in which the magistrate is sitting is not in session, such time shall be extended to include the duration of the next regular court session on the judicial day immediately following.”
Subdivision (a) of section 849 states: “When an arrest is made without a warrant by a peace officer or private person, the person arrested, if not otherwise released, shall, without unnecessary delay, be taken before the nearest or most accessible magistrate in the county in which the offense is triable, and a complaint stating the charge against the arrested person shall be laid before such magistrate.”
The record supports the finding that the delay in arraigning defendant was unnecessaiy. The People do not dispute this. It is inferable that if the arresting officer had prepared and turned in his written report before going off duty on Thursday evening, the arraignment could have taken place on Friday rather than the following Monday. The critical issue here is whether, on the record made in the trial court, that delay justified a dismissal of the complaint.
The dismissal was not authorized by any California statute. Neither sections 825 nor 849 contain any language authorizing or requiring a dismissal of a prosecution by reason of delay in arraignment. Statutes on the subject of dismissal (Pen. Code, §§ 1381, 1381.5, 1382, 1389) require dismissal for certain delays after the arraignment or the commencement of the proceeding, but do not cover delay prior to arraignment or the commencement of the proceeding.
The failure of the arresting officer to do the paperwork necessary to cause the complaint to be filed at an earlier time reflects against the legality of the détention, rather than the legality of the subsequent prosecution. Ordinarily, an illegal detention is not, by itself, a ground for a dismissal of charges. (In re Walters (1975) 15 Cal.3d 738, 753 [431]*431[126 Cal.Rptr. 239, 543 P.2d 607]; People v. Bradford(1969) 70 Cal.2d 333, 344 [74 Cal.Rptr. 726, 450 P.2d 46].)
Dismissal of a criminal prosecution before trial on the ground of delay in arraignment is apparently a rare occurrence, as we have found no decisions of the Supreme Court or Courts of Appeal growing out of such a case.
In People v. Morse (1970) 4 Cal.App.3d Supp. 7 [84 Cal.Rptr. 703], the appellate department of the superior court reversed a municipal court order which had dismissed a misdemeanor charge on account of a lapse of six days between arrest and arraignment. The appellate court concluded (at pp. 9-10) that “whatever other remedies may be available to a defendant whose arraignment is unduly delayed, immunity from prosecution is not one of them.”
In arriving at this conclusion the Morse court found an analogy in People v. Wilson (1963) 60 Cal.2d 139 [32 Cal.Rptr. 44, 383 P.2d 452], and other cases holding that delay was not ground for reversal of the conviction without a showing of prejudice.
When prearraignment delay is urged as a ground of reversal after conviction, the applicable rule is that stated in People v. Combes (1961) 56 Cal.2d 135, 142 [14 Cal.Rptr. 4, 363 P.2d 4]: “A violation of a defendant’s right to be taken before a magistrate within the time specified by the law does not require a reversal unless he shows that through such wrongful conduct he was deprived of a fair trial or otherwise suffered prejudice as a result thereof.”
The rule has been cited without challenge in subsequent decisions. In People v. Wilson, supra, 60 Cal.2d 139, 153-154, the court used the Combes rule as an analogy in a discussion of post arraignment delay. The Combes statement was cited and followed in People v. Vick (1970) 11 Cal.App.3d 1058, 1068 [90 Cal.Rptr. 236], and as an alternate ground of decision in People v. Hill (1967) 66 Cal.2d 536, 551 [58 Cal.Rptr. 340, 426 P.2d 908]; People v. Stewart (1968) 264 Cal.App.2d 809, 814 [70 Cal.Rptr. 873], and People v. Norman (1967) 252 Cal.App.2d 381, 392 [60 Cal.Rptr. 609].
A dismissal would not remedy the officer’s error or redress the prearraignment detention. An automatic grant of immunity to the suspected offender would be nothing but a reprisal against the public at [432]*432large for the officer’s neglect. This is a sanction which our courts have declined to impose for illegal or excessive detention. (See, e.g., People v. Bradford, supra, 70 Cal.2d 333, 344.)
We therefore turn to the issue of prejudice. The language of the Combes decision indicates a burden upon the defendant to produce evidence of prejudice: “A violation . . . does not require a reversal unless he shows . . . prejudice as a result thereof.” (56 Cal.2d at p. 142.)
No evidence was offered by either side except the testimony of the arresting officer to show the absence of good cause for his delay in writing up his arrest report. Defendant’s contention in the trial court and on appeal is that the delay in arraignment deprived him of the opportunity to obtain a chemical test which would have established his innocence. In substance, defendant is asking this court to take judicial notice that he would have taken steps to obtain a test if his arraignment had taken place on Friday, but that he could not have done so effectively on or after the Monday arraignment.
We can take judicial notice that a chemical test may produce evidence of the presence or absence of the effects of a controlled substance in the body, and that over a period of time the effect dissipates so that the test loses its validity. (See In re Newbern (1959) 175 Cal.App.2d 862, 866 [1 Cal.Rptr. 80, 78 A.L.R.2d 901]; People v. Johnson (1976) 62 Cal.App.3d Supp. 1, 7 [133 Cal.Rptr. 123].) But we cannot go as far as defendant requires to establish prejudice in this case.
There is no showing that defendant requested a chemical test (as did Newbern, for example). We do not know whether his failure to make such a request on Thursday evening or thereafter was due to ignorance, or a preference that no chemical test be made. On this record it is a matter of speculation whether the defendant would have sought such tests if he had been advised of them, or whether he had reason to expect that a test would have been helpful to him. For example, if defendant was aware that he had recently ingested some substance which was likely to give a positive test reaction, he may not have desired to submit to a test. The record does not show that defendant requested a test on Monday; nor does it show whether or not a test of blood taken on Monday would have had validity as evidence of nonuse on the previous Thursday.
Thus there was nothing in the record which would support any finding by the municipal court that the delay in arraignment had prejudiced defendant.
[433]*433The order of dismissal is reversed.
Kingsley, J., concurred.