(dissenting).
I respectfully dissent from Division II of the majority opinion and the result.
I believe a more detailed recitation of the background facts are necessary to a full understanding of the case. On February 6, 1970 defendant was arrested for allegedly driving a motor vehicle upon the public highway while intoxicated, the arrest occurring some time shortly before noon. Defendant was placed under arrest and incarcerated in the city jail at Madrid, and the following day was taken before a magistrate, the mayor of Madrid, where bond was fixed in the sum of $300, and upon defendant’s posting the same he was released. No preliminary hearing was held then or at any other time so far as the record discloses, nor does the record reflect any waiver of preliminary hearing on the part of defendant.
The county attorney’s information was filed in the office of the clerk of the district court of Boone County on April 7, 1970, and on May 13 defendant appeared, was arraigned and pleaded not guilty. He was not represented by counsel at any time prior to the appearance on May 13, at which time he was arraigned and entered his not guilty plea.
Also on May 13, 1970 defendant filed his motion to dismiss the information on the grounds defendant was charged by the information filed April 7 with the commission of the offense on February 6, and that no indictment had ever been found, returned, presented or filed by the grand jury, and that more than thirty days had intervened between the date of the alleged commission of the offense and the filing of the information. He further asserted as a grounds for dismissal that he had never had a preliminary hearing in connection with the matter, had never waived the same, had never appeared by or through an attorney, and had never been represented by legal counsel at any stage of the proceedings up to the date of his arraignment. He further asserted there was never any *776time or place when or where he could have filed any request or made any demand of any kind, character, nature or description to assert or protect his legal rights between the date of the alleged commission of the offense and the filing of the information, as he had no knowledge the county attorney planned or intended to file an information against him.
Defendant further alleged in his motion to dismiss that if he were forced to defend himself and go to trial before a jury on the information, such action would result in denying him effective assistance of counsel, the right to a speedy trial, due process of law, and the equal protection of law guaranteed him by sections 9 and 10 of Article I of the Iowa Constitution, the Sixth Amendment and section 1 of the Fourteenth Amendment to the Constitution of the United States, and all of his rights under section 795.1, The Code, 1966.
Defendant’s motion to dismiss was submitted to the court and overruled by enrolled order filed June 3, 1970. On May 15, 1970 defendant had filed his motion and demand for a speedy trial, in accordance with the provisions of section 795.1, The Code, 1966, as amended, and section 795.2 of the Code. The cause then proceeded to trial, commencing June 22, 1970 and resulted in a verdict of guilty returned by the jury on June 23.
I am unable to agree under the circumstances and the facts of this case that the defendant here was not in reality “held to answer” for a public offense. A preliminary information had been filed against him, he had posted bond, and had been released without further formality. Under section 761.1, The Code, upon the arrest of a defendant and the filing of a preliminary information, the magistrate must immediately (after waiting a reasonable time for appearance of counsel) hold a preliminary examination or allow defendant to waive same. In this matter no preliminary examination was held, nor did the defendant waive such preliminary examination. The record does not show he was afforded any opportunity to waive such preliminary examination. The deprivation of an accused of the exercise of one statutory right (in this case, the right to a preliminary examination) should not be used as justification for depriving an accused of another statutory right (the right to speedy indictment). This is what was done in State v. Mays, 204 N.W.2d 862 (Iowa filed February 21, 1973), in which I concurred, but which I would now vote to overrule.
In American Bar Association Standards for Criminal Justice, Standards Relating to Speedy Trial, p. 19, § 2.2(a), the committee discusses the question of a person being “held to answer”, and says:
“This is the date on which the defendant was brought before a judicial officer on some allegation of a crime or crimes (not necessarily a charge, as heretofore defined) upon which that judicial officer ordered the defendant thereafter held in custody or released on bail or recognizance.”
I believe the foregoing to be the proper meaning of the phrase “held to answer”, and it is at this time (whenever he is either held in custody or released on bail or recognizance) that the protective safeguards should attach. The United States Supreme Court has recognized this problem, and speaks to the issue in United States v. Marion, 404 U.S. 307, at page 320, 92 S.Ct. 455, at page 463, 30 L.Ed.2d 468 (1972):
“Arrest is a public act that may seriously interfere with the defendant’s liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy and create anxiety in him, his family and his friends. * * * So viewed, it is readily understandable that it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engages the particu*777lar protections of speedy-trial provision of the Sixth Amendment.
“Invocation of the speedy-trial provision thus need not await indictment, information or other formal charge.”
I cannot disregard the fact defendant was released on bail, although he was not afforded a preliminary hearing, albeit he never at any time requested one, and in short it seems unreasonable to hold that defendant was not “held to answer” when all the other incidents of a formal charge could be deemed to have been operative against him. Therefore, I would hold defendant, insofar as the facts of this case are relatable to the provisions of section 795.1, The Code, 1966, should be considered as having been “held to answer”.
I would reverse the trial court. I would forthrightly overrule State v. Mays, supra, and settle this troublesome question once and for all.
MASON and RAWLINGS, JJ., join in this dissent.