dissenting.
I believe that the best course would be to vacate the judgment and remand this case for further findings of fact and conclusions of law. My reasons flow from consideration of the content of the majority opinion.
Because of the failure to preserve Blackwell’s urine sample, the *145trial court dismissed the State’s indictment. The majority favors this remedy because it seems unfair that Blackwell did not get a chance to independently test his urine sample when: the trial court issued an order saying he could, a prior field test showed negative for drugs, and a subsequent positive test is the basis for his prosecution. Understandable. I do not agree.39 But it is understandable. In my view, however, the law does not support dismissing the State’s indictment for the following reasons:
1. While OCGA § 17-16-6 gives a trial judge discretion to fashion a remedy for a violation of the discovery statute, a dismissal with prejudice of a criminal indictment is not a matter of a trial court’s discretion. A dismissal with prejudice of a criminal indictment interferes with the State’s right to prosecute and “have its case against [the defendant] determined on the merits.” State v. Owens, 189 Ga. App. 308, 310 (375 SE2d 656) (1988).
The Civil Practice Act (OCGA § 9-11-41 (b)) provides for dismissals with prejudice of civil cases, but the court knows of no statutory or case authority which permits such dismissals in criminal cases. (Emphasis in original.) State v. Cooperman, 147 Ga. App. 556, 558 (2) (249 SE2d 358) (1978). See also special concurrence in State v. Owens, [supra at 310].
(Punctuation omitted; emphasis in original.) State v. Luttrell, 207 Ga. App. 116 (427 SE2d 95) (1993).
Thus, in order to deny the State its right to prosecute on the indictment because of the failure to preserve evidence, such failure must amount to a constitutional due process violation. California v. Trombetta, 461 U. S. 479, 488-489 (104 SC 2528, 81 LE2d 413) (1984) (“Trombetta”); Arizona v. Youngblood, 488 U. S. 51, 58 (109 SC 333, 102 LE2d 281) (1988) (“Youngblood”).
Here, the trial judge dismissed the indictment because he incorrectly determined that the District Attorney (DA), not Blackwell, had a duty to take the court’s order to the crime lab to prevent destruction of the sample:
Let me ask you, whose responsibility is it to take a court *146order to your client — I mean, your witness [crime lab]? Isn’t it your responsibility to get them there, Mr. Wilbanks [DA]? . . . [I]t’s your responsibility to tell them there’s going to be an independent. ... I think the State’s got a burden once that order’s entered.
In fact, a DA has no such burden under OCGA § 17-16-4 (3).40 And even if the DA had such duty, dismissal of the indictment is not an appropriate remedy.
2. Presumably on a right for any reason ground, the majority would affirm dismissal of the State’s indictment on constitutional due process grounds. However:
(a) The majority holds that Georgia courts “have not squarely addressed” the issue of the “bad faith” requirement in cases such as this one where the State failed to preserve disclosed evidence. This is incorrect. The Supreme Court of Georgia has “squarely” held that, “In dealing with the failure of the state to preserve evidence which might have exonerated the defendant, a court must determine both whether the evidence was material and whether the police acted in bad faith in failing to preserve the evidence.” (Emphasis supplied.) Walker v. State, 264 Ga. 676, 680 (3) (449 SE2d 845) (1994); Terrell v. State, 271 Ga. 783, 787 (6) (523 SE2d 294) (1999); Smith v. State, 270 Ga. 68, 71 (6) (508 SE2d 145) (1998). This Court has repeatedly followed the Supreme Court’s two-prong analysis.41
The majority now advocates a new approach which would abolish the longstanding requirement that both “constitutional materiality” AND “bad faith” be shown in failure-to-preserve cases. The majority contends that the raft of cases which have established the two-prong requirement of (A) constitutional materiality and (B) bad faith are not applicable here because “those cases did not involve evidence whose exculpatory value was apparent before its destruction.” But even assuming arguendo that the exculpatory value of *147Blackwell’s sample was shown, the establishment of exculpatory value before destruction is prong A, constitutional materiality “to satisfy the standard of constitutional materiality in Trombetta . . . the exculpatory value of the evidence must be apparent before [it is] destroyed.” (Punctuation omitted.) Youngblood, supra at 56. It is illogical to argue that the establishment of one prong of a two-prong requirement negates the second prong, when this Court has repeatedly held that both prongs must be shown to establish a due process violation. The majority’s approach ignores precedent and endorses a departure from the decisions of the Supreme Court of Georgia. This Court has no such authority.42
(b) So, in order to dismiss the indictment, the State must have acted in “bad faith” of a constitutional dimension by failing to preserve Blackwell’s urine sample. Perhaps in recognition of such, the majority also holds that “the trial court implicitly found bad faith here based on the State’s disregard of its discovery order.” This holding is incorrect both legally and factually.
(i) The type of “bad faith” that has constitutional dimension is motivated by a specific intent, i.e., a “conscious effort to suppress exculpatory evidence.” Trombetta, supra at 488. “Bad faith” of a constitutional dimension is not the generalized., undefined “bad faith” referenced in OCGA § 17-16-6 which can be deliberate conduct motivated by anything from anger to stubbornness, based on the trial court’s discretionary determination, and applies equally to the defense as well as the State. The type of “bad faith” that results in a constitutional due process violation cannot be found “implicitly” simply because there is a statutory discovery violation. The words, “bad faith,” may be the same. But the legal concepts are not.
(ii) All participants in the court below agree that “the sample was no longer there because of crime lab policy,” not because there was an attempt to suppress exculpatory evidence. No one acted in *148“bad faith” of a constitutional dimension under the facts of this case:
Decided July 14, 2000In failing to preserve . . . samples for respondents, the officers here were acting in good faith and in accord with their normal practice. The record contains no allegation of official animus towards respondents or of a conscious effort to suppress exculpatory evidence.
(Citation and punctuation omitted.) Trombetta, supra at 488.
(iii) Blackwell did not claim below and has not claimed on appeal that the State acted in “bad faith” in destroying the tested urine sample. And there was no finding of “bad faith” by the trial court: “[Trial Judge:] I’m not trying to go against the district attorney’s office on any specific ground.”
Accordingly, the State did not get a chance to defend against such charge at trial or on appeal. For this Court to now make such a serious finding as “bad faith” of a constitutional dimension on the record before us — without permitting the State any opportunity to respond — is truly “fundamentally unfair.”
3. This case makes clear the old axiom “bad cases make bad law.” The record in this case is deficient: it is unknown whether the sample was destroyed before or after the trial court’s order; it is unknown whether the crime lab was aware of the court’s order at the time of the destruction; it is unknown whether the trial court dismissed the indictment based on constitutional “fundamental fairness” grounds or based upon a violation of a duty the prosecutor allegedly held under the discovery statute; there was no finding of bad faith or allegation of such; the State did not get to defend against any allegation of bad faith; and the trial court dismissed the State’s indictment when such remedy was not available for a discovery violation, if one existed.
I believe that this case should be remanded for specific findings of fact and conclusions of law. Let the trial court and the parties decide what happened to Blackwell’s urine sample, when it happened, and why. Let the trial court determine whether there was “bad faith” on the part of the State and give the State an opportunity to defend against such charge. Let the trial court then fashion a legal remedy appropriate to its specific factual findings on this subject, with a right in the nonprevailing party to appeal. On the record before us now, I must respectfully dissent.
*149Roger G. Queen, District Attorney, John G. Wilbanks, Jr., Assistant District Attorney, for appellant. William L. Reilly, for appellee.Blackwell could have sought testing for nine months following his indictment. He did not. Depending on whom you believe, he could have sought testing for one month after the court’s order was entered. He did not. The crime lab keeps tested urine samples for 12 months and then destroys them. This is their policy. There is nothing “fundamentally unfair” about it. The correctness of this policy does not turn on the facts of any one particular case. The law permits the crime lab to promulgate such rules and requires prosecutors and defendants alike to work within them.
Evidence that is within the possession, custody, or control of the Forensic Sciences Division of the Georgia Bureau of Investigation or other laboratory for the purpose of testing and analysis may be examined, tested, and analyzed at the facility where the evidence is being held pursuant to reasonable rules and regulations adopted by the Forensic Sciences Division of the Georgia Bureau of Investigation or the laboratory where the evidence is being held.
OCGA § 17-16-4 (3).
Milton v. State, 232 Ga. App. 672, 678-679 (6) (503 SE2d 566) (1998) (“In dealing with the failure of the state to preserve evidence which might have exonerated the defendant, a court must determine both whether the evidence was material and whether the police acted in bad faith in failing to preserve the evidence.”) (punctuation omitted; emphasis supplied). Accord Pickens v. State, 225 Ga. App. 792, 799 (5) (484 SE2d 731) (1997); Nichols v. State, 221 Ga. App. 600, 603 (6) (473 SE2d 491) (1996); Brantley v. State, 199 Ga. App. 623, 624 (1) (405 SE2d 533) (1991); Lynott v. State, 198 Ga. App. 688, 690 (402 SE2d 747) (1991).
Two schools of thought have evolved over the last 12 years in state courts regarding the failure-to-preserve cases of Trombetta and Youngblood. Georgia and many of our sister states have determined that Trombetta and Youngblood must be read together and that constitutional materiality and bad faith must both be shown. United States v. Femia, 9 F3d 990, 993 (1st Cir. 1993); United States v. Jobson, 102 F3d 214, 218 (6th Cir. 1996); State v. Berkley, 567 A2d 915 (Me. 1989); State v. Garcia, 643 A2d 180 (R.I. 1994); State v. Dulaney, 493 NW2d 787 (Iowa 1992); State v. Graham, 118 N.C. App. 231 (454 SE2d 878) (1995); Steese v. State, 114 Nev. 479 (960 P2d 321) (1998); State v. Ortiz, 119 Wn.2d 294 (831 P2d 1060) (1992). See also People v. Harris, 182 Ill.2d 114 (695 NE2d 447) (1998), wherein Illinois adopts Youngblood’s bad faith requirement three years after People v. Newberry, 166 Ill.2d 310 (652 NE2d 288) (1995), cited by the majority herein, and authored by the two Justices who dissented in People v. Newberry.
The position now advocated by the majority is taken directly from the second school of thought which was rejected by our Supreme Court when it endorsed the two-prong requirement of “constitutional materiality” and “bad faith” in order to establish a due process violation.