(dissenting)—I dissent. Today, the majority ignores all controlling case law on point, and in doing so creates virtual uncertainty for every practitioner and trial court attempting to comply with the speedy trial rule.
*398On October 21, 1986, Ms. Fladebo was cited for driving while under the influence of intoxicating drugs. At the time of her arrest, the arresting officer was aware that Ms. Fladebo was a substance abuser. Upon searching her purse, the officer discovered four hypodermic needles, other narcotics paraphernalia including a spoon and cotton, and what he believed to be a controlled substance.
On October 27, 1986, Ms. Fladebo waived arraignment and entered a plea of not guilty to the charge of driving while under the influence. On February 18, 1987, 114 days after her arraignment on the DWI charge, the Skagit County Prosecuting Attorney charged Ms. Fladebo, by way of information, with criminal possession arising out of the October 21, 1986, arrest. Ms. Fladebo timely filed a motion to dismiss under CrR 3.3. The trial court denied her motion. I would hold the failure to dismiss was error, as violative of Ms. Fladebo's right to a speedy trial.
"A defendant released from jail . . . shall be brought to trial not later than 90 days after the date of arraignment." CrR 3.3(c)(1). As the majority notes, this rule does not directly address when the 90-day period begins to run if the State files an additional charge against a defendant already being held for another crime arising out of the same episode. Consistent with commentary and all case law on point, I would reverse the Court of Appeals decision for all of the reasons stated by the majority at page 391.
In State v. Peterson, 90 Wn.2d 423, 585 P.2d 66 (1978), Justice Utter, writing for a unanimous court, held, since CrR 3.3 contains
no provisions which contemplate separate charges from the same conduct filed years apart, we look to ABA standards to provide supplemental interpretation. Standard 2.2 recommends that the time within which trial must be held should begin on all crimes "based on the same conduct or arising from the same criminal incident" from the time the defendant is held to answer any charge with respect to that conduct or episode.
State v. Peterson, 90 Wn.2d at 431 (quoting ABA Standards Relating to Speedy Trial (Approved Draft, 1968)). In *399State v. Peterson, supra, this court adopted a former draft of ABA standard 2.2 as determinative of the issue at hand. Today that standard provides:
The time for trial should commence running, without demand by the defendant, as follows:
(a) from the date the charge is filed, except that if the defendant has been continuously held in custody or on bail or recognizance until that date to answer for the crime or a crime based on the same conduct or arising from the same criminal episode, then the time for trial should commence running from the date the defendant was held to answer;
(Italics mine.) 2 American Bar Ass'n, Standards for Criminal Justice, Std. 12-2.2, at 12.17 (2d ed. 1980).
A former draft of the Standard was cited with approval in State v. Erickson, 22 Wn. App. 38, 587 P.2d 613 (1978). In that case, the defendant was arrested for burglary and reckless driving on May 11, 1977. During an impound inventory search of the defendant's vehicle, a pistol was found in the glove compartment. As early as the following day, the prosecutor's office was aware the defendant had numerous prior felony convictions. On May 13, 1977, the defendant entered a plea of not guilty on the burglary charge. On July 15, 1977, the charge was dismissed, as the defendant had been in continuous custody for 65 days. Nevertheless, on August 4, 1977, the State charged the defendant with illegal possession of a pistol stemming from his May 11, 1977, arrest. The court held the illegal possession of the pistol arose out of the same criminal episode as the burglary, and thus the State's failure to bring the defendant to trial on the additional charge within the same time frame was violative of CrR 3.3:
[I]f the State does not charge a defendant with all related offenses arising out of the same criminal conduct or episode as soon as it has probable cause to do so it runs the risk of a dismissal for failure to provide a speedy trial.
State v. Erickson, 22 Wn. App. at 45.
Finally, in State v. Bradley, 38 Wn. App. 597, 687 P.2d 856, review denied, 102 Wn.2d 1024 (1984), the court, consistent with all prior case law, again applied the "same episode" speedy trial rule. In that case, the investigating *400officer cited the defendant for misdemeanor possession of marijuana, and also reported the incident to the prosecuting attorney for a possible felony charge of attempting to elude a pursuing police vehicle. Citing State v. Peterson, supra, the court held, "the charges arose from the same criminal episode, and therefore the starting point for computation of speedy trial time is the same for both charges." State v. Bradley, 38 Wn. App. at 599.
Despite these unquestioned precedents, the majority today holds the ABA Standard inapplicable where the two charges arising out of the same episode are prosecuted in different jurisdictions. The majority ignores that in State v. Bradley, supra, as in the case today, one of the charges was filed in a court of limited jurisdiction, while the other was a felony prosecution in superior court.
More startling are the facts in State v. Peterson, supra. In that case, the defendant was captured by police on January 17, 1975, while fleeing from the scene of an armed robbery. The defendant was booked on charges of robbery and assault. Subsequently, the defendant was transferred to the custody of federal officials. Ultimately, the defendant pleaded guilty to the federal charges and was confined in the federal penitentiary. Finally, on January 11, 1977, the State filed charges against the defendant stemming from the January 1975 episode. Despite the State's argument that the defendant's incarceration in federal prison should alter the application of CrR 3.3, this court unanimously applied ABA Standard 2.2 even though one of the charges was prosecuted in another jurisdiction. Therein, Justice Utter wrote:
CrR 3.3 and its time limits apply uniformly to all persons held to answer for a crime. This includes persons incarcerated elsewhere as well as those who are not. The exceptions [to CrR 3.3] provide all necessary relief from the time limits if a defendant is on trial elsewhere or unavailable through lack of cooperation or delayed cooperation of another jurisdiction.
(Italics mine.) State v. Peterson, 90 Wn.2d at 429.
The majority today not only creates certain confusion for practitioners and courts, but it additionally ignores any *401reverence for stare decisis, not to mention fundamental fairness to criminal defendants. It is apparent the majority has overruled, albeit sub silentio, much more than the rule previously applicable in today's case. Confusing constitutional analysis with speedy trial rules, the majority opens the door for this court to be inundated with cases claiming an exception to what was previously a bright-line rule. If one can show the delay was relatively short (does this mean the 90-day rule is now 95?), and if one can show no prejudice inhered, then perhaps the rule no longer applies. Under the majority's analysis, it would appear, every violation of the speedy trial rule is to be measured against constitutional standards. Such a test renders the rule meaningless. In the end, the majority states the "speedy trial rules were not designed to be a trap for the unwary", Majority opinion, at 394; and yet, in fashioning an exception to a rule relied upon daily by every criminal court in this state, the majority ensnares much more than the unwary prosecutor.
Given my analysis on the speedy trial issue, I would not reach the additional issue reached by the majority. Nevertheless, I am constrained by the majority's application of the rule announced in State v. Stroud, 106 Wn.2d 144, 720 P.2d 436 (1986), to question that rule's applicability in the case at hand. Absent a more searching analysis balancing the expectation of privacy in a closed purse, where the defendant sits handcuffed in the back of the police vehicle, I would not so briskly conclude there has been no violation of Const, art. 1, § 7. As stated, in this case the issue need not be reached.
Accordingly, I would reverse the decision of the Court of Appeals.
Dolliver, J., concurs with Pearson, J.