concurring in the result.
[¶ 16] I concur with the result reached by the majority, but disagree with the majority’s analysis.
[¶ 17] The majority incorrectly asserts the prosecution is initiated and a ease is pending when a complaint, information, or indictment is filed. Majority Opinion at ¶ 9. However, N.D.R.Crim.P. 5(a) provides after an officer or other person makes an arrest, he or she must take- the arrested person before the nearest available magistrate. N.D.R.Crim.P. 5(a). In addition, “[i]f an arrest is made without a warrant, the magistrate must promptly determine whether probable cause exists under Rule 4(a). If probable cause exists to believe that the arrested person has committed a criminal offense, a complaint must be filed[.]” Id. Rule 5(a), N.D.R.Crim.P., establishes the authority of the district court may begin before a complaint is filed. Id.
[¶ 18] Contrary to the analysis of the majority, the plain language of N.D.R.Crim.P. 48(b) grants district courts the authority to dismiss criminal cases when unnecessary delay occurs. State v. Moran, 2006 ND 62, ¶ 8, 711 N.W.2d 915 (citing N.D.R.Crim.P. 48(b)). Rule 48 indicates it applies whenever unnecessary delay occurs; its application is not expressly contingent upon the filing of an indictment, information, or complaint. Rather, the plain language provides: “The court may dismiss an indictment, information or complaint if unnecessary delay occurs in ... filing an information or complaint against a defendant who has been arrested or for whose arrest a warrant has been issued[.]” N.D.R.Crim.P. 48(b). The comment reiterates the plain reading:
Subdivision (b) is a codification of the inherent power of the court to dismiss a case for want of prosecution. Subdivision (b) thus acts as a vehicle for enforcing the Sixth Amendment right to a speedy trial. ' The court can dismiss whenever there has been unnecessary delay without being required to decide whether the unnecessary delay was of *895such a nature as to deprive the defendant of a constitutional right.
Subdivision (b) provides for dismissal of prosecution in the following situation[ ]: ... if a defendant has been arrested and there is unnecessary delay in presenting the charge against him to a grand jury or in filing an information or complaint against him[J
N.D.R.Crim.P. 48(b), Explanatory Note.
[¶ 19] Further, the history of the Rule establishes it was intended to apply to post-arrest situations, regardless of whether a charging document has been filed. When the Joint Procedure Committee adopted Rule 48, section b provided: “If there is unnecessary delay ... in filing an information or complaint against a defendant who has been arrested or for whose arrest a warrant has been issued, ... the court may dismiss the prosecution.” Minutes of the Joint Procedure Comm. 17 (Sept. 17,1970).
[¶ 20] The Joint Procedure Committee discussed N.D.R.Crim.P. 48 at a meeting considering the adoption of the Rules of Criminal Procedure. Minutes of the Joint Procedure Comm. 10 (Sept. 17, 1970). The minutes support the application of Rule 48 to post-arrest situations. A review of the minutes indicates the Committee was concerned with delays occurring post-arrest. The Committee examined the comparable Federal Rule. Rule 48(b), F.R.Crim.P. stated:
If there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer to the district court, or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, information or complaint.
Minutes of the Joint Procedure Comm. 10 (Sept. 17, 1970) (quoting F.R.Crim.P. 48(b)). The Committee considered the meaning of the phrase “held to answer,” then used in the Federal Rule, and concluded the phrase was too limiting. Regarding the phrase “held to answer,” the Committee minutes provide:
Judge Smith then made a motion to amend 48(b) by deleting all the words in the last line after “the” and inserting the word “prosecution”, so the amended subsection would read: “(b) By Court. If there is unnecessary delay in presenting the charge to a grand jury or in filing an information or complaint against a defendant who has been arrested or for whose arrest a warrant has been issued, or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the prosecution.” The motion was seconded by Mr. Shaft.
During the discussion that followed, the Committee was unable to agree whether “has been held to a answer to the court” means an action of the court or of an arresting officer. Mr. Vogel read from 8A Moore’s Federal Practice 48-12, note 5:
“A defendant is held to answer or ‘bound over’ by a finding of probable cause by the commissioner, or by a waiver of preliminary examination. Rule 5(c). Rule 48(b) does not apply to delay in according a defendant a preliminary examination. The remedy for such delay would be habeas corpus, if detained, and a motion made to the commissioner to dismiss the complaint. See 5.04[3] supra. Cf. Crow v. United States (C.A.8th.1963) 323 F.2d 888, 891 (motion erroneously made to district court).”
Mr. Sand moved to amend Judge Smith’s motion to amend by deleting the words “been held to answer to the court” and substituting “been arrested”. Mr. Graham seconded Mr. Sand’s motion.
*896Judge Smith brought up the matter of a warrant for arrest against somebody in prison in another state. If the rule is limited to “after arrest”, he would not have a right to move for trial in this state and would not have right to speedy trial.
Mr. Sand withdrew the motion which Mr. Graham had seconded. Mr. Graham proposed a substitute motion to Judge Smith’s earlier motion, to delete “held to answer to the district court” and insert the words “arrest or for whose arrest a warrant has been issued”, and in the last line delete the words “indictment, information or complaint” and insert the word “prosecution”. Judge Smith seconded the substitute motion.
Mr. Shaft suggested the rule was becoming completely contrary to the federal rule as construed by the court. His was the only vote in opposition to the substitute motion. In favor were Judge Muggli, Mr. Vogel, Judge Smith, Mr. Graham, and Mr. Sand.
Minutes of the Joint Procedure Comm. 15 (Sept. 17, 1970). The minutes suggest the Committee removed the language “held to answer” because the phrase was too limiting since speedy trial concerns may arise earlier than the indictment. The Committee reviewed the concurrence of Justice Harlan in Dickey v. Florida, 398 U.S. 30, 44-45, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970) (citations omitted):
Does the speedy-trial guarantee apply to all delays between a defendant’s arrest and his sentencing? The view that it does is not without support in the wording of the Sixth Amendment. The Constitution says that an “accused” is entitled to a speedy trial “(i)n all criminal prosecutions.” Can it be that one becomes an “accused” only after he is indicted, or that the Sixth Amendment subdivides “prosecution” into various stages, granting the right to speedy trial in some and withholding it in others? In related contexts involving other clauses of the Sixth Amendment, we have held that the “prosecution” of an “accused” can begin before his indictment; for example, in Escobedo v. Illinois, 378 U.S. 478, 490, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), we spoke of the time when “investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect.” And as regards realization of the purposes of the Speedy Trial Clause, the possibility of harm to interests protected by the clause is certainly great whenever delay occurs after arrest.
The Committee’s concern that N.D.R.Crim.P. 48(b) applies to the period post-arrest, but prior ‘to the filing of a charging document, was validated in United States v. Marion, 404 U.S. 307, 319, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), in which the United States Supreme Court held F.R.Crim.P. 48(b) does not apply to pre-arrest situations. “The rule clearly is limited to post-arrest situations.” Id.
[¶ 21] Considering when the right to a speedy trial attaches, the Committee discussed Moore’s Federal Practice, which provided: “Rule 48(b) implements the defendant’s constitutional right to a speedy trial, a right which the Supreme Court has termed ‘one of the most basic rights preserved by our Constitution.’ The speedy trial right attaches from the commencement of prosecution, whether by indictment or information, or complaint.” Minutes of the Joint Procedure Comm. 14 (Sept. 17, 1970) (citing 8A James Wm. Moore et ah, Moore’s Federal Practice ¶ 48.03 (1st ed.1938)). The Committee also noted: “A criminal prosecution has many stages, and delay may occur during or between any of them[,] ... [including] be*897tween arrest and indictment[.]” Id. at 12. In addition, one court had held: “Conceivably in some circumstances the court, in assessing the nature of a delay before trial, might look to the aggregate time lapse from alleged act to trial date, but in the first instance each segment must be viewed separately!!]” Hardy v. United States, 343 F.2d 233, 234 (D.C.Cir.1964). The Committee cited Mathies v. United States, 374 F.2d 312, 314-15 (D.C.Cir.1967), which provided: “Rule 48(b) obviously does not grant the Appellant less rights than the Sixth Amendment. Indeed, it places a stricter requirement of speed on the prosecution, and permits dismissal of an indictment even though there has been no constitutional violation.”
[¶22] The section of Moore’s Federal Practice cited by the Committee in its 1970 minutes has been updated, and now provides: “The speedy trial right attaches from the commencement of prosecution, whether by arrest, indictment, information, or complaint.” 28 James Wm. Moore et al., Moore’s Federal Practice § 648.03[3][a] (3d. ed.2008), (citing United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) (emphasis added)). The Marion decision interpreted F.R.Crim.P. 48(b). Marion, 404 U.S. at 319, 92 S.Ct. 455 (citing F.R.Crim.P. 48(b)). The explanatory note to N.D.R.Crim.P. 48 states the Rule was adapted from the Federal Rule; therefore, when interpreting N.D.R.Crim.P. 48(b), we may look to interpretations of F.R.Crim.P. 48(b).
[¶ 23] In 1973, the Committee amended Rule 48 by replacing “prosecution” with “indictment, information or complaint.” Minutes of the Joint Procedure Comm. 16 (Apr. 24-26, 1973). The minutes of the Committee’s meeting state:
Judge Pearce referred to the language in subdivision (b) which reads “... the court may dismiss the prosecution.” He said that a prosecution is not “dismissed” — the charging document is dismissed, the prosecution may be “terminated”. Judge Pearce MOVED to strike the word “prosecution” and insert “indictment, information or complaint”. Seconded by John Graham. Mr. Graham objected to such change and suggested instead substituting the word “terminate ” in lieu of “dismiss”. Judge Erickstad questioned the legal significance of the word “terminate”. Judge Pearce said subdivision (b) is comparable with the Federal Rule.
Judge Burdick suggested striking the language “... in presenting the charge to a grand jury or”. Mr. Sand MOVED to further amend subdivision (b) by striking the language “in presenting ... jury or”. Judge Smith seconded Mr. Sand’s motion to amend; the motion CARRIED unanimously.
Mr. Sand suggested changing the word “is” to “was” in line 4 of subdivision (b). No action.
There was discussion re Judge Pearce’s motion to amend. The motion CARRIED, with two dissenting votes.
Mr. Shaft MOVED to adopt Rule ⅛8 as amended. Second by Judge Pearce. Motion CARRIED unanimously.
Id. Thus, the plain language of Rule 48 and the Joint Procedure Committee’s discussions of Rule 48, indicate Rule 48 applies post-arrest and do not require that a charging document has been previously filed.
[¶ 24] Case law indicates the application of Rule 48(b) provides protection that is at least as broad as the Sixth Amendment right to a speedy trial. United States v. Mark II Electronics of Louisiana, 283 F.Supp. 280, 283 (E.D.La.1968) (“Undeniably, (Rule 48(b)) implements the constitutional guarantee of a speedy trial. *898But it goes further.”) (citations omitted); Mathies, 374 F.2d at 314-15.
[1125] In Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court established a balancing test for courts to utilize when analyzing whether a defendant has been deprived of the right to a speedy trial guaranteed by the Sixth Amendment. Id. The Court in Barker provided four factors should be balanced: “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Id. The United States Supreme Court discussed the factors in Doggett v. United States, 505 U.S. 647, 651-52, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992), where it held: “The first [factor] is actually a double enquiry. Simply to trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from ‘presumptively prejudicial’ delay[.]”
[¶ 26] The district court had authority to dismiss the criminal actions under Rule 48 post-arrest; however, the district court abused its discretion for three reasons. First, the district court did not provide notice to the State before dismissing the cases. This Court has held “the district court can only dismiss under Rule 48(b) with caution and after a forewarning to prosecutors of the consequence of dismissal.” City of Jamestown v. Snellman, 1998 ND 200, ¶ 11, 586 N.W.2d 494.
[¶ 27] Second, N.D.R.Crim.P. 48(b) allows a court to dismiss an indictment, information, or complaint if “unnecessary delay” has occurred. N.D.R.Crim.P. 48(b). This parallels the first factor from the Barker test, which is used to determine whether a defendant’s right to a speedy trial has been violated. State v. Moran, 2006 ND 62, ¶ 8, 711 N.W.2d 915 (citing Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)). This Court has held “[i]f the delay is longer than the delay usually allowed for criminal prosecutions, the delay is ‘presumptively prejudicial.]’ ” Id. at ¶ 9 (citing Doggett v. United States, 505 U.S. 647, 651-52, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992)).
[¶ 28] In the present cases, the delays were minimal. Both cases were dismissed on December 7, 2007. Williams was arrested on December 2, 2007. This delay amounted to five working days. Ferrie was taken into custody on November 24, 2007. This delay was ten working days. Neither of the delays were presumptively prejudicial, and neither appear to be unnecessary. Therefore, the district court abused its discretion by dismissing the cases, because unnecessary delay had not occurred.
[¶ 29] Third, the last factor from Barker is “prejudice to the defendant.” Barker, 407 U.S. at 530, 92 S.Ct. 2182. The purpose of this factor is to protect three interests: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Moran, at ¶ 17 (citing Barker, 407 U.S. at 532, 92 S.Ct. 2182); see United States v. MacDonald, 456 U.S. 1, 7-9, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982). Both Williams and Ferrie posted bond and were released on the same day of their arrest. Thus, the first interest does not apply to either defendant. Additionally, the delays in both cases were quite minimal; therefore, it cannot reasonably be concluded, nor did the district court indicate in dismissing the cases, that the delays caused anxiety and concern of the accused, or impaired the defendants’ defenses. The district court abused its discretion by dismissing the cases, and I concur in the result of the majority opinion.
[¶ 30] Carol Ronning Kapsner