Overby

James Overby appeals from a judgment of the Superi- or Court of Alameda County denying his petition for writ of mandate or prohibition. Appellant was arrested on April 17, 1979, on a misde meanor warrant which had issued on October 18, 1978, charging him with a violation of Vehicle Code section 23102 (driving under the influence). He was arraigned on May 2, 1979. Thereafter, he moved to dismiss in the municipal court on the grounds that the six-month delay in serving the arrest warrant violated his right to a speedy trial.

At the hearing in the municipal court, Overby argued that the delay in serving the arrest warrant was in and of itself prejudicial (his motion alleged no actual prejudice). That presumed prejudice, he contended, was sufficient to shift the burden to the People to make a showing of justification for the delay. The People, on the other hand, argued that Overby had to show actual prejudice prior to any requirement on their part to produce evidence of justification. The record below is vague as to whether either party felt that any prejudice had to be balanced against justification or whether prejudice had to be overcome by a showing of good cause. Overby…