¶ 31. (dissenting). A criminal justice system that allows the government to destroy the sole evidence of a person's guilt prior to notice, charging, or a meaningful opportunity for the accused to inspect the State's evidence is fundamentally unfair. The State charged Weissinger with having something in her blood, but then destroyed the blood prior to giving Weissinger any meaningful opportunity to inspect the blood. It is a perversion of justice that we apparently accord more due process evidentiary protection to our property than we accord to our liberty interests. I respectfully dissent *567—the government may not take the liberty of one of its citizens without allowing that citizen a meaningful opportunity to examine the evidence offered by the State.
¶ 32. In civil court, we impose a duty upon every party or potential litigant to preserve evidence essential to a claim that will likely be litigated. Sentry Ins. v. Royal Ins. Co. of Am., 196 Wis. 2d 907, 918, 539 N.W.2d 911 (Ct. App. 1995). A party or potential litigant with a legitimate reason to destroy evidence must provide reasonable notice to the affected party "of a possible claim, the basis for that claim, the existence of evidence relevant to the claim, and a reasonable opportunity to inspect that evidence" before its destruction. American Family Mut. Ins. Co. v. Golke, 2009 WI 81, ¶ 5, 319 Wis. 2d 397, 768 N.W.2d 729. We impose sanctions in civil court for the destruction of evidence for two main purposes: "(1) to uphold the judicial system's truth-seeking function and (2) to deter parties from destroying evidence." Insurance Co. of N. Am. v. Cease Elec. Inc., 2004 WI App 15, ¶ 16, 269 Wis. 2d 286, 674 N.W.2d 886 (2003). Those two purposes should likewise exist when we seek to take someone's liberty.
¶ 33. By supporting the State's destruction of evidence in this criminal case, the majority makes two critical errors: (1) it misreads Arizona v. Youngblood, 488 U.S. 51 (1988), as permitting the State's precharging destruction of inculpatory evidence, Majority, ¶ 13, and (2) it relies on a due process protection (cross-examination) that is inadequate, see id., ¶ 19.
Youngblood Does Not Sanction the Precharging Destruction of Inculpatory Evidence
¶ 34. The majority's misapplication oí Youngblood becomes apparent when examining the three types of evidence that are collected by the government in build*568ing a criminal case. One type of evidence is exculpatory evidence. Under Brady v. Maryland, 373 U.S. 83, 87 (1963), the State is required to turn over favorable, material evidence to a criminal defendant upon request. We know from Brady that if the State knew that evidence in its possession had an exculpatory value, the destruction or suppression of that evidence would be a due process violation regardless of the good or bad faith of the State. Id.
¶ 35. Another type of evidence is all that material that is collected by the State in the course of its investigation, but which is not used at trial. It is this second type of evidence that was at issue in Youngblood. The evidence in Youngblood was clothing that the government had not properly refrigerated such that scientific testing was not possible. Youngblood, 488 U.S. at 53-54. The clothing was not inculpatory evidence and the government did not attempt to make use of this evidence in its case-in-chief. Id. at 56. The clothing was also not known by the government to be exculpatory. Id. at 54. In rejecting dismissal as a sanction for the government's failure to preserve this evidence for potential use at trial, the Youngblood Court stated that it was unwilling to read the "fundamental fairness" requirement of the Due Process Clause as imposing on the government an "undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution." Id. at 58. The majority errs when it reads this passage as imposing no duty on the government to preserve nonexculpatory evidence absent a showing that the State destroyed the nonexculpatory evidence in "bad faith."1
*569¶ 36. At the opposite end of the spectrum from Brady exculpatory evidence is a third type of evidence: inculpatory evidence. As stated by the majority, Weissinger's blood falls into this classification. Majority, ¶ 13. Wisconsin Stat. § 346.63(1)(am) is a strict liability crime that requires the State to prove two elements beyond a reasonable doubt: (1) that Weissinger was operating a motor vehicle on a highway and (2) that Weissinger had a detectable amount of a restricted controlled substance in her blood at the time she operated her vehicle. Wis JI — Criminal 2664B. Without Weissinger's blood, the State could not prove beyond a reasonable doubt that Weissinger had a detectable amount of a restricted controlled substance "in her blood" at the time she operated her vehicle on July 6, 2009.
¶ 37. The majority justifies the precharging destruction of inculpatory evidence in Weissinger's case by relying on a series of factually distinguishable cases. In Illinois v. Fisher, 540 U.S. 544, 545-56, 548 (2004) (per curiam), for example, the Court found that police did not violate a criminal defendant's due process rights when they destroyed inculpatory evidence of his possession of cocaine more than ten years after charging and while the defendant was on the lam. Fisher does not tell us that Youngblood applies to Weissinger's case, Majority, ¶ 13, as Fisher had a meaningful opportunity to test the evidence against him, but he chose to flee the state instead. Weissinger had no such opportunity.
¶ 38. The proper reading of Youngblood and its cohorts is not as permitting the precharging destruction of inculpatory evidence, but as an unwillingness to impose "an undifferentiated" duty on the government to retain and preserve "all material that might be of conceivable evidentiary significance in a particular *570prosecution." See Youngblood, 488 U.S. at 58. Read this way, Youngblood's application to Weissinger is inappropriate as Weissinger's case does not concern itself with evidence that might be of "conceivable evidentiary significance"; it concerns inculpatory evidence. Nor does requiring the government to preserve evidence until a criminal defendant has an opportunity to inspect or examine it, i.e., postcharging, impose a duty incompatible with Youngblood.
¶ 39. We often say that a criminal defendant is "entitled to a fair trial, not a perfect trial." State v. Hanson, 2000 WI App 10, ¶ 20, 232 Wis. 2d 291, 606 N.W.2d 278 (1999). The sad fact is that the evidence at issue in Youngblood was in fact exculpatory evidence rather than evidence "that might be of conceivable evidentiary significance." See Youngblood, 488 U.S. at 58. Fortunately, preservation of the evidence at issue in Youngblood ultimately "uph[e]ld the judicial system's truth-seeking function." See Cease Elec. Inc., 269 Wis. 2d 286, ¶ 16. Twelve years after the Supreme Court decided Youngblood and after Larry Youngblood had served his prison sentence, advances in science proved his innocence. Barbara Whitaker, DNA Frees Inmate Years After Justices Rejected Plea, N.Y. Times, Aug. 11, 2000, at A12. The evidence that the Youngblood Court held "might be of conceivable evidentiary significance" was the same evidence that later exonerated him. See Karen McDonald Henning, The Failed Legacy of Absolute Immunity Under Imbler: Providing a Compromise Approach to Claims of Prosecutorial Misconduct, 48 Gonz. L. Rev. 219, 271 n.270 (2012). Youngblood may not have received a perfect trial, but at least he was able to clear his name based on the government's preservation of evidence that the majority dismisses as being "only 'potentially useful.' " Majority, ¶ 13.
*571 The Majority's Reliance on Cross-Examination Is Inadequate
¶ 40. We recently released State v. Luedtke, 2014 WI App 79, 355 Wis. 2d, 436, 851 N.W.2d 837, which offers a good parallel as to why I joined the majority in Luedtke but dissent here. Luedtke was charged with the same crime as Weissinger — having a detectable amount of a restricted controlled substance in his blood under Wis. Stat. § 346.63(1)(am) — and Luedtke made the same argument as Weissinger that his blood was destroyed before he had a chance to examine or test it. Luedtke, 355 Wis. 2d 436, ¶ 1. The factual similarities end there. Luedtke:
(1) Was observed at the scene of the accident stuffing syringes and a metal spoon down a sewer drain;
(2) Was found to have syringes, a brown prescription bottle containing a white powder, and a metal spoon in his car;
(3) Admitted to a police officer he had injected morphine;
(4) Showed evidence of impairment on field sobriety tests to the extent that he could not drive safely;
(5) Was arrested;
(6) Was read the Informing the Accused and advised that he could take an alternate test free of charge or have a test conducted by a qualified person at his own expense;
(7) Was handcuffed;
(8) Was examined by a drug recognition expert at the hospital;
*572(9) Had his blood drawn at the hospital on April 27, 2009;
(10) Was charged in a criminal complaint on December 18, 2009; and
(11) Had his blood destroyed "per state laboratory protocol" on February 4, 2010.
Id., ¶¶ 2-4.
¶ 41. Luedtke received notice of his right to an alternate test and had numerous meaningful opportunities to challenge the blood evidence against him. This case is the polar opposite of Luedtke. The investigating officer had neither reasonable suspicion nor probable cause to believe that Weissinger was under the influence of drugs or alcohol at the time of her accident or that her ability to operate a motor vehicle was impaired. The investigating officer asked Weissinger for a voluntary blood sample as a matter of department policy. Weissinger was never arrested or taken into custody on July 6. Weissinger was never given Miranda2 warnings. Weissinger was never advised that she had a right (or need) to have her own test done. Weissinger was never advised that she was the subject of a criminal investigation. In short, Weissinger never had a reason to perform her own tests back in July 2009 as the State did not threaten her liberty at that time.
¶ 42. The majority acknowledges that due process requires that criminal defendants be given "a meaningful opportunity to present a complete defense," Majority, ¶ 8, but asserts that Weissinger's right to due process is protected by her ability to cross-examine the State's witnesses, id., ¶ 19. This due process protection is inadequate.
*573¶ 43. A key due process protection, relied on by the Wisconsin Supreme Court in both State v. Disch, 119 Wis. 2d 461, 351 N.W.2d 492 (1984), and State v. Ehlen, 119 Wis. 2d 451, 351 N.W.2d 503 (1984), is absent in this case. Both Disch and Ehlen pointed to the right— statutorily mandated to be told to an arrestee at the time of a blood draw for alcohol or controlled substances — to have an independent blood sample drawn and tested. Disch, 119 Wis. 2d at 470-71, 480; Ehlen, 119 Wis. 2d at 457; see also Wis. Stat. § 343.305(4). The sanction when the State does not provide an alternate test at the accused's request is suppression of the first test. State v. McCrossen, 129 Wis. 2d 277, 287, 385 N.W.2d 161 (1986). The majority ignores the State's failure to provide Weissinger this due process protection.
¶ 44. Nor is reliance on the cross-examination of the State's expert meaningful as the State's experts are not infallible. About the time Weissinger's blood was tested, the Wisconsin State Laboratory of Hygiene received a failing score from the Wisconsin Department of Health Services' Division of Quality Assurance and was required to enact and "submit a corrective action plan showing root cause analysis and ensuring implementation of effective corrective action." Letter from Barbara J. Saar to Charles D. Brokopp (July 15, 2010) available at http://walworthbar.org/wp-content/uploads /2012/0 l/WSLH_AI_June-2010-PT_Corrective-ActionDocuments-22. pdf. The Division of Quality Assurance found that, in a testing event in June 2010, the lab had a score of forty percent, which was a "failing event score."3 Id.
*574¶ 45. Nor are mistakes unheard of in crime labs. The Nassau County, New York, crime lab was shut down in February 2011 for producing inaccurate measurements in drug cases, Associated Press, Nassau County Shuts Down Crime Lab, N.Y. Times, Feb. 19, 2011, at A18; the San Francisco drug lab was shut down in 2010 and hundreds of drug cases were dismissed when it was discovered a technician was stealing drugs, Shoshana Walter, In Scandal's Wake, Police Turn to Quick, Cheap Test for Drugs, N.Y. Times, Aug. 27, 2010, at 17A; the St. Paul, Minnesota, police crime lab was discovered to have widespread problems with staff skills, equipment maintenance, and missteps in scientific processes, Chao Xiong, Counties to Review Crime Lab Results, Star Tribune (Minneapolis), Feb. 22, 2013, at 2B; and in Boston, a crime lab chemist was "accused of submitting false drug tests and failing to follow protocol," resulting in the reexamination of more than forty thousand cases, Milton J. Valencia, Lab Scandal Makes Way into Federal Court System; New Chapter in Dookhan Case, Boston Globe, Sept. 17, 2013, at Bl, 12. In light of the myriad ways that such testing can go wrong, the majority's prescription that cross-examination can cure the State's destruction of the blood evidence is illusory. A person whose liberty is threatened by the government is not afforded due process protection by being restricted to asking the State's expert, "Are you really, really sure your results are correct?"
¶ 46. Additionally, the majority errs when it places the burden on Weissinger to show that the State's inculpatory evidence (her blood) was "appar*575ently exculpatory" when it was destroyed by the State. Majority, ¶ 13. A defendant bears no burden of proof as to his or her innocence, much less a burden that is nearly impossible to meet. Weissinger does not have to prove the State's inculpatory evidence is exculpatory for fundamental fairness to dictate her right to test or inspect the evidence. In State v. Amundson, 69 Wis. 2d 554, 577-78, 230 N.W.2d 775 (1975), our supreme court held that because of the difficulty in proving the exculpatory nature of evidence that has been destroyed, a defendant need show only that the lost evidence was clearly material to his or her guilt or innocence, not that it was actually exculpatory, to trigger the government's duty to preserve the evidence. The majority ignores Amundson, but a brief example shows why it is good law.
¶ 47. Consider that instead of Weissinger's blood, the evidence at issue was a bag of powder found in Weissinger's car. Police had no circumstantial evidence indicating that the powder was a controlled substance and Weissinger exhibited no sign that she was using or had used illegal substances or was impaired. The police asked Weissinger if they could take the bag of powder as it was "department protocol." The State crime lab then had an expert test the powder and the expert opines/tells the prosecutor that the powder is cocaine. The prosecutor, because of work load does not charge Weissinger until after the crime lab has thrown away the bag of powder because it was too expensive for the crime lab to store evidence for more than six months.4 *576The State thereafter charges Weissinger with possession of a controlled substance. Under Amundson, the government had a duty to preserve the powder as it was clearly material to Weissinger's guilt or innocence. Under the logic of the majority, the destruction of the powder is permissible as Weissinger has the right to ask some questions of the State expert who testifies that the powder is cocaine, even though Weissinger was never provided an opportunity to test the powder to prove that it was powdered sugar. Cf. Fisher, 540 U.S. at 545-56; State v. Tarwid, 147 Wis. 2d 95, 106, 433 N.W.2d 255 (Ct. App. 1988).
¶ 48. Simply put, the majority reads Youngblood too broadly. Youngblood is not a bright-line test when examining whether the fundamental fairness requirement of the Due Process Clause has been violated. As Justice Stevens noted in his concurrence in Youngblood-. "[Tjhere may well be cases in which the defendant is unable to prove that the State acted in bad faith but in which the loss or destruction of evidence is nonetheless so critical to the defense as to make a criminal trial fundamentally unfair." Youngblood, 488 U.S. at 61 (Stevens, J., concurring). To deny an accused the right to a meaningful inspection of the State's inculpatory evidence is fundamentally unfair. I dissent.
Which begs the question: why would the government engage in the bad faith destruction of evidence that has value to the government and no exculpatory value to the defendant?
Miranda v. Arizona, 384 U.S. 436 (1966).
The blood sample in this case was received by the State Laboratory of Hygiene in July 2009, the test used against Weissinger was performed in February 2010, the report introduced into evidence that documented the test result was gen*574erated in March 2010, the blood sample was destroyed in April 2010, Weissinger was charged in May 2010, and the lab received its failing event score in June 2010.
The reason the blood was destroyed in Weissinger's case was not because it was no longer testable or material to the case; the reason the blood was destroyed was because the laboratory instituted a six-month retention period in response to the high volume of samples that it receives. I disagree that *576"high volume" is a justifiable reason to destroy evidence. First and foremost, one would think the State would desire not to destroy its inculpatory evidence. Second, while I do not know the cost of storing a vial of blood, I would imagine that it is much less than the cost of incarcerating an innocent person in one of our state prisons.