specially concurring.
I agree that the prosecution of the defendant is not time-barred. I write separately to point out that my concurrence should not be read as expressing confidence in the current validity of Hinson v. Coulter or the cases it has spawned.
Three years ago, in a laudable attempt to speed up the prosecution of drunk drivers, this court, in Hinson v. Coulter, 150 Ariz. 306, 723 P.2d 655 (1986), declared that DUI cases would be treated differently, for Rule 8 speedy trial purposes, than all other types of cases. Specifically, the three-member majority of the Hinson court held that:
The prosecutor must proceed to charge or indict as well as try the defendant within the 150-day limit mandated by Rule 8.2(a) of the Rules of Criminal Procedure if not in custody and 120 days from arrest if in custody pursuant to Rule 8.2(b), Ariz.R.Crim.P., 17A A.R.S. Failure to proceed promptly will result in a dismissal with prejudice, unless the exceptions contained in Rule 8 apply. In any event, the defendant must be tried within 150 days of arrest as provided in Rule 8.2(a), Ariz.R.Crim.P., 17A A.R.S.
(Emphasis supplied.)
The dissenting justice in Hinson, Justice Holohan, expressed his concerns as follows:
The rigid 150-day time limit will result in more DWI cases being terminated — by dismissal. Somehow I fail to see how such dispositions will aid in getting drunk drivers off the road____ By ignoring the realities of the situation, the court has fashioned a remedy which will serve to benefit the guilty because we have court congestion. The rigid time limit will be especially harmful for prosecution of felony DWI cases.
The avalanche of cases produced by the Hinson “rule” confirm, at least in part, Justice Holohan’s worst fears. The court calendars of the state, including that of this court, confirm that Hinson has produced a whole new subspecies of DUI litiga*306tion. Often, what is now litigated in DUI cases is unrelated to the merits of the case; instead, the Hinson issues are litigated. Where the defendant prevails, he is, of course, not tried at all, let alone in the timely fashion envisioned by Hinson.
Hinson unequivocally required trial of DUI cases within either 120 or 150 days, depending on the defendant’s custody status. Reality has required the court to retreat from its own Hinson rule. No longer is it necessary to try the defendant within the time limits; it is only necessary for the prosecutor to file the case within the time limits and announce that he is ready for trial. Shepherd v. Fahringer, 158 Ariz. 266, 762 P.2d 553 (1988). By the convenient device of late filing, the prosecutor is now permitted to evade the very time limits Hinson said he could not evade. The lower courts are required to countenance the evasions, because we approved them in Shepherd. The court’s answer to this recent form of subterfuge has been to “charge” the additional time to the defendant. The effect is clear: a defendant charged at the last minute can either forego his right to prepare for trial and to have his lawyer prepare for trial or he may forego the time limits so boldly and unequivocally proclaimed in Hinson.
It simply cannot be “good law” to permit the prosecution to sit on a DUI case until near the end of the allowable time limit and then require the defendant to elect which of his supposed rights he wishes to give up. Nor can it be “good law” to permit so many DUI cases and, sadly, even related manslaughter cases to fall through the Hinson-created cracks, a result which is demonstrably occurring. Hinson litigation is itself a substantial cause of delay in DUI prosecutions, as witness the present case.
Doubtless the decision by this court in Hinson to try to speed up DUI cases was well-intentioned. Nothing in the legislation or in the speedy trials rules of this court, however, suggest an intent to treat DUI cases differently than all other criminal cases. The decision to do so should perhaps now be recognized as a noble experiment meriting reconsideration.
The court has recently agreed to create a committee of knowledgeable individuals to study problems inherent in DUI cases, including the Hinson case and its impact. That committee will provide the court with information enabling it to consider whether rules or procedures in DUI cases should be changed. That committee provides an appropriate forum through which to first revisit and reconsider Hinson. Pending the result of its work and this court’s action based on that work, I concur in the result reached in this case.