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for the MARTA offenses and the Troup County offense and not for the purpose of insuring his appearance at the trial on the East Point offenses. Although a prosecutor swore out an arrest warrant on the [current] East Point offenses in February 2000, Herndon has identified no evidence in the record that the warrant was ever served on him. We find no basis for concluding that being subject to a ‘hold’ while serving a sentence without more constitutes being placed under arrest. While the holds may have indicated that the State would refuse to release Herndon, when he became otherwise free to go, the holds were not the legal basis for Herndon’s detention until the State actually did refuse to release Herndon after he became otherwise free to go , that is, when he completed his sentence on the Troup County offense on January 3, 2004.” 2. “We do not address the unexplained lapse of 43 months between the issuance of an arrest warrant on the East Point offenses and the filing of the indictment (which was earlier than the date of arrest). Preindictment delay is not properly considered in the context of constitutional rights to a speedy trial but rather in the context of state and federal due process rights. See United States v. Lovasco , 431 U.S. 783, 788-789(II) (97 S.Ct. 2044, 52 L.Ed.2d 752) (1977); 16C C.J.S. Constitutional Law, § 1018.” Brown v. State, 277 Ga.App. 169, 626 S.E.2d 128 (January 9, 2006). Length of delay (26-27 months) was presumptively prejudicial. Reason for delay, including state incarceration on other charges and resulting inability to communicate with defense counsel, were “relatively benign.” Fact that defendant did not assert his right until immediately before trial weighs against him. No showing of prejudice. Trial court did not err in finding that defendant’s constitutional speedy trial right was not abridged. Nusser v. State, 275 Ga.App. 896, 622 S.E.2d 105 (October 18, 2005). Arrested for DUI in October, 2001, defendant moved for acquittal in March, 2004 (29 months later) based on violation of his constitutional speedy trial right. Held, trial court properly found that defendant’s speedy trial right was not violated. Although length of delay and reason for delay (the normal caseload in Fulton State Court) weighed against State, defendant never asserted the right to speedy trial prior to March, 2004, and showed no prejudice (not incarcerated, no impairment of defenses). As to assertion of right, defendant contended that he could not assert the right during the two years prior to the filing of formal charges by the solicitor, and was not notified of the filing of the accusation until two terms of court had passed. Court of Appeals rules that none of this is relevant to assertion of defendant’s constitutional speedy trial right : “Nusser has conflated his ability to assert his statutory speedy trial right under OCGA § 17-7-170 with his ability to assert his constitutional speedy trial right. ‘Unlike the statutory protections conferred by OCGA § 17-7-170 ... that attach with formal indictment or accusation,’ a defendant’s constitutional speedy trial right ‘attaches upon arrest and can be asserted thereafter.’ Smith v. State, 266 Ga.App. 529, 532(3) (597 S.E.2d 414) (2004). See also Collingsworth v. State, 224 Ga.App. 363, 372-373(1) (480 S.E.2d 370) (1997); State v. Hight, 156 Ga.App. 246, 247 (274 S.E.2d 638) (1980). Likewise, the procedural bar created by the specific time deadlines found in the speedy trial statute do not apply to constitutional claims. [Cit.] Hence, Nusser’s contention that he could not have asserted his constitutional speedy trial right until after he was accused, and his assertion that he was procedurally barred from asserting his constitutional right by the time he received notice of the accusation, are simply incorrect. Nusser had ample time to assert his constitutional right to a speedy trial before his trial became imminent.” As to impairment of defenses , “Nusser argued that the delay in proceedings caused him to lose the ability to present eyewitness testimony from the medical doctor who examined him on the date of his arrest. ” No impairment, however, because State agreed to stipulate to admission of the records which included the doctor’s findings, citing Nellons v. State , 274 Ga. 179, 181, 549 S.E.2d 381 (2001). Rackoff v. State, 275 Ga.App. 737, 621 S.E.2d 841 (October 5, 2005). No violation of defendant’s constitutional speedy trial right shown in his DUI prosecution: despite total 43 month delay between charge and trial, “the delay caused by the state’s successful appeal must be considered benign because there is no evidence that the delay was attributable to the state’s negligence or the state’s deliberate attempt to delay the trial to hamper the defense. … The remainder of the delay was largely attributable to the trial court’s consideration of Rackoff’s pre-trial motions, and the state cannot be faulted on this account.” Defendant failed to assert his right until 43 months had passed, and “failed to show prejudice attributable to the delay other than his stress and concern in awaiting trial.” Defendant complains that “his defense was impaired by the disappearance of the witness who was present in the car with him when he was arrested. According to Rackoff’s affidavit, the witness told Rackoff that he was moving ‘back up north, and that he would call [Rackoff] with his new contact information,’ but Rackoff never heard from him. ‘If witnesses die or disappear during a delay, the prejudice is obvious.’ Barker [ v. Wingo, 407 U.S. 514, 532 (92 S.Ct. 2182, 33 L.Ed.2d 101) (1972)]. The affidavit does not show, however, that Rackoff attempted to locate the witness. Rackoff’s lack of knowledge as to the location of the witness is not equivalent to a showing that the witness had ‘disappeared.’ See Buxton v. State, 253 Ga. 137, 140(4) (no effort was made to secure the presence of two witnesses claimed to be unavailable); Shuler v. State, 263 Ga.App. 124, 127(4) (587 S.E.2d 269) (2003) (defendant showed he was unable to reach two witnesses but not that they would be unavailable for trial).” Affirmed on