DISSENTING AS TO SUBSECTION B.
I respectfully dissent from Subsection B of the majority’s opinion because I believe that the Tax Commission’s destruction of the seized evidence, prior to the assessment hearing, violated Garcia’s due process rights.
Although Garcia made a timely protest to his initial drug tax jeopardy assessments, the Tax Commission, without a hearing, issued a decision upholding the two assessments over 3$ years after the seizures. Only when Garcia protested did the Tax Commission schedule an informal hearing. Nine weeks before the hearing, Garcia requested an opportunity to examine and weigh the substances that formed the basis of the Tax Commission’s assessment. The Tax Commission eventually informed him that it did not have posses*618sion of the substances, which apparently had been lost or destroyed either by the state or the federal government.
The Tax Commission’s assessments are presumed .valid, and Garcia bore the burden of proving that the assessment was incorrect. I.C. § 63-4208(4). Without access to the seized substances, Gareia could produce no evidence to refute the weights provided by the Tax Commission in support of its assessment. The Tax Commission conceded that the record did not show whether Garcia even received copies of the state laboratory reports before the hearing. The. notices of jeopardy assessment and state laboratory reports used by the Tax Commission provided vastly differing figures as to the weight of the seized substances. One state laboratory report acknowledged that the nominal weight (103.88 grams) of almost % of the cocaine seized from Garcia’s workplace was approximate. Under these circumstances, it was clear that the weight of the seized substances, and thus the amount of Garcia’s tax liability, was at issue at the hearing. Garcia simply had no opportunity to respond to the Tax Commission’s evidence and to present his own evidence on his tax liability.
The majority holds that, under Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), the destruction of the seized evidence did not violate Garcia’s due process rights, because Garcia made no showing that the State acted in bad faith in losing or destroying the evidence. In Young-blood, the U.S. Supreme Court held that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Id. at 58, 109 S.Ct. at 337, 102 L.Ed.2d at 289. In Youngblood, police had failed to refrigerate clothing from a sexual assault victim that contained semen samples from the assailant. Id. at 53, 109 S.Ct. at 334, 102 L.Ed.2d at 286. A swab taken from the victim suggested, but did not prove, that the assailant’s blood type differed from that of the defendant.4 Id. at 68, 109 S.Ct. at 342, 102 L.Ed.2d at 296 (Blackmun, J., dissenting). Failure to refrigerate the clothing made the semen samples deteriorate so that they were useless for establishing the assailant’s blood type. Id. at 54, 109 S.Ct. at 335, 102 L.Ed.2d at 286. The Supreme Court held that the non-preserved semen samples were not material. Id, at 56 n*, 109 S.Ct. at 336 n*, 102 L.Ed.2d at 289 n*. The Court characterized the samples as evidentiary material “of which no more can be said than that [they] could have been subjected to tests, the results of which might have exonerated the defendant.” Id. at 57, 109 S.Ct. at 337, 102 L.Ed.2d at 289. The Supreme Court stressed that the State did not even attempt to use the semen samples in its own case in chief and that the defendant’s expert had access to all of the forensic evidence actually used by the State. Id. at 55-56, 109 S.Ct. at 335-36, 102 L.Ed.2d at 287-88. This is considerably different than the case before us.
In contrast, the substances seized from Gareia were obviously material as to his tax liability and provided the basis for the Tax Commission’s assessment; yet, the evidence was never made available to Gareia. This case is similar to Ex parte Gingo, where the Supreme Court of Alabama held that, because discarded evidence of allegedly illegally dumped hazardous substances was critical to the defense, it was “fundamentally unfair” to allow the State to use the results of laboratory tests on destroyed samples in the criminal trial when the defendants had no access to the tested samples. 605 So. 2d 1237, 1241 (Ala. 1992) (quoting Youngblood, 488 U.S. at 61, 109 S.Ct. at 339, 102 L.Ed.2d at 291 (Stevens, J., concurring in the judgment)).
Here, the Tax Commission assessed illegal drug taxes on Garcia solely because of the State-provided weights of the seized substances. The identity and weight of the substances were critical to determining Garcia’s tax liability. Because Youngblood does not apply to the facts of this case, Garcia was not required to show that the State acted in bad faith in destroying the evidence. Garcia had no means of contesting the Tax Commission’s assessment without access to the evidence *619upon which the assessment was based. Therefore, destruction of the seized evidence before the tax assessment hearing violated Garcia’s due process rights, and the tax assessment should be vacated.
. Certain aspects of blood type can be determined from semen. Youngblood, 488 U.S. at 68, 109 S.Ct. at 342, 102 L.Ed.2d at 296 (Blackmun, J., dissenting).