• 2 The State's second argument focuses on the legal basis for the trial court's ruling. Based on People v. Taylor (1977), 54 Ill. App.3d 454, 369 N.E.2d 573, and People v. Dodsworth (1978), 60 Ill. App.3d 207, 376 N.E.2d 449, the trial court found the State's negligence warranted the sanction imposed. The State argues the trial court misapplied these cases to the instant facts.

People v. Precup (1978), 73 Ill.2d 7, 16-17, 382 N.E.2d 227. The cases cited by defendant, People v. Dodsworth (1978), 60 Ill. App.3d 207, 376 N.E.2d 449, and People v. Taylor (1977), 54 Ill. App.3d 454, 369 N.E.2d 573, are distinguishable. In both, defense pretrial requests for permission to perform tests upon controlled substances were thwarted by the State's unnecessary destruction of the alleged contraband.

On appeal, the State contends that the trial court erred in dismissing the indictment because there was no due process violation. The State asserts that under People v. Taylor (1977), 54 Ill. App.3d 454, People v. Dodsworth (1978), 60 Ill. App.3d 207, and People v. Sleboda (1988), 166 Ill. App.3d 42, the defendant must file a timely motion to preserve the evidence. Since the defendant did not file a specific request to preserve, the State contends that a violation of due process did not occur.

We do not believe Taylor was ever reviewed by the supreme court of this State. Sources available to us show dismissal of a petition for leave to appeal. People v. Dodsworth (1978), 60 Ill. App.3d 207, 376 N.E.2d 449, appeal denied (1978), 71 Ill.2d 611, parallels Taylor. Dodsworth involved .03 of a gram of a substance, all of which was destroyed before testing. The parties stipulated only one-third of this was necessary for testing. ( 60 Ill. App.3d 207, 208.)

The Colorado Supreme Court has held that the state is not prevented from performing scientific tests that destroy evidence, though such destruction cannot be condoned when it is unnecessary. ( People v. Gomez (1979) 198 Colo. 105 [ 596 P.2d 1192, 1197]; accord, People v. Garries (Colo. 1982) 645 P.2d 1306; see also People v. Dodsworth (1978) 60 Ill. App.3d 207 [ 376 N.E.2d 449] [state must prove some justification for destructive testing]; People v. Taylor (1977) 54 Ill. App.3d 454 [ 369 N.E.2d 573] [state has heavy burden of showing destruction of evidence during testing is necessary]; Poole v. State (Miss. 1974) 291 So.2d 723, 725 [no due process violation if it was reasonably necessary for state to consume evidence in testing it]; Lee v. State (Alaska 1973) 511 P.2d 1076, 1077 [no due process violation in consumption of heroin in testing unless deliberate attempt to suppress exculpatory evidence]; see also State v. Asherman (1984) 193 Conn. 695 [ 478 A.2d 227, 246-247] [no due process violation in consumption of blood samples in testing in absence of showing that consumption unnecessary]; State v. Kersting (1981) 50 Or. App. 461 [ 623 P.2d 1095, 1103-1104] [defendant may show due process violation in state consumption of evidence in testing by showing retest would have been possible but for state's test and by challenging state's test re

Defendant contends the trial court should have dismissed the information also because the State destroyed the drug evidence in his case. Defendant bases this contention on two decisions of this court: People v. Taylor (1977), 54 Ill. App.3d 454, 369 N.E.2d 573, and People v. Dodsworth (1978), 60 Ill. App.3d 207, 376 N.E.2d 449. In Taylor, the court held that the State "has a duty to preserve some part of the substance so that an independent chemical analysis may be made by the putative law violator in the event criminal prosecution is later instituted."

Defendant Jordan further maintains that the destruction of the victim's jaw denied him his right to due process because he did not have an opportunity to independently examine the evidence. He relies upon People v. Dodsworth (1978), 60 Ill. App.3d 207, and People v. Taylor (1977), 54 Ill. App.3d 454, to support the position that a defendant's fundamental right to know of adverse evidence and to have an opportunity to rebut it are infringed when the State fails to preserve physical evidence which is crucial to his defense. Our examination of those cases, however, discloses that they are distinguishable from the present case.

State v. Booth, 98 Wis.2d 20, 295 N.W.2d 194 (Wisc. Ct.App. 1980); People v. Dodsworth, 60 Ill. App.3d 207, 17 Ill.Dec. 450, 376 N.E.2d 449 (1978). In response to the inherent difficulties presented by this fact pattern, several courts have derived tests that are blends of "favorability" and "materiality," the third Brady test.

It is undisputed that defendant filed a timely motion to preserve the evidence. See People v. Taylor, 54 Ill. App. 3d 454 (1977); People v. Dodsworth, 50 Ill. App. 3d 207 (1978); People v. Sleboda, 166 Ill. App. 3d 42 (1988). The majority concludes that a reasonably prudent officer acting in good faith could assume that the vehicle would no longer be needed after it was examined by the defense (Supra at ¶ 32) and since defendant has not shown that the evidence was destroyed in bad faith, he cannot support his due process claim.

Second, if the defendant makes such a showing, the burden then shifts to the State to show that the destruction of the dangerous substance was necessary. See generally People v. Dodsworth, 60 Ill.App.3d 207, 210, 17 Ill.Dec. 450, 376 N.E.2d 449, 452 (1978) (in which this court held that when the State destroys evidence "at the heart of the State's case," the State bears the burden of showing that the destruction was either necessary or could be excused); see also People v. Thompson, 265 Ill.App.3d 413, 417-18, 202 Ill.Dec. 717, 638 N.E.2d 363, 367 (1994) (discussing the two-step burden-shifting process when determining whether a charge should be dismissed due to delay).         If the defendant cannot show that the destroyed substance was essential to and determinative of the outcome of his case, then the defendant must establish bad faith on the State's part.