concurring in the judgment only.
While I would also vacate the trial court's order, I neither join the majority opinion nor pretend to comprehend it. For my part, I believe that an order requiring the CBI to videotape its in-process testing or requiring the district attorney to finance a defense expert would have exceeded the trial court's authority; and I consider it an abuse of discretion to threaten the exclusion of evidence for failing to do what the court lacks the authority to order directly. The majority, on the other hand, without serious explanation or debate, imports from outside the Jurisdiction an advisory standard authorizing courts to order the videotaping of executive branch investigations, despite disapproving as premature such an order in this case, apparently because no evidence had yet been consumed.
Based on little more than the representation of the defendant's lawyer that the cost of producing an expert to observe the CBI's testing would be excessive for the public defender's budget, the district court in this case ordered that all prosecution DNA test results be excluded unless the defendant were permitted to videotape the testing process itself or the district attorney paid the difference between the cost of videotaping and the cost of contemporaneous observation by a defense expert. The sole testimony before the court on this issue emphatically indicated that any attempt to videotape DNA testing would have deleterious consequences for the testing process; could not be done effectively in any event; and was therefore prohibited by CBI testing protocols. Representations of counsel confirmed that attempts to videotape DNA testing are similarly prohibited by the other public and private testing agencies queried.
Nevertheless, for reasons that seem less than clear, the trial court determined that in light of the costs of expert observation during the actual testing process, it would be unreasonable to prohibit videotaping for subsequent expert observation; and it further determined "from just picking up the paper on Sunday morning and looking at the ads," that the procedure could be videotaped for a cost of $1,000.1 In response to prosecution insistence that its budget for state-mandated costs had not been legislatively authorized for defense witness expenses, the court made clear that it did not care where the funding came from, as long as the defense was not required to bear the expense.2 According to the district court's order, the evidence would simply be held inadmissible unless testing *475were videotaped or defense expenses were covered in some way other than from the public defender's budget.
Although it does so without explanation, even the majority appears to agree that the trial court would have exceeded its authority by ordering the prosecution to pay for a defense expert. By statute, court costs (including expert witness fees) incurred both by indigent defendants and the state in prosecuting them, must be borne by the state, rather than the local governments funding the district attorneys of the state. See §§ 13-3-104, 16-18-101, 18-1.8-701(@), CRS. (2006). Furthermore, the general assembly has provided a funding mechanism to fulfill the state's obligation in this regard, assigning the responsibility for seeking appropriations to cover their own mandated costs to the district attorneys, see ch. 399, see. 1, 2000 Colo. Sess. Laws 2195, 2202, 2210 n. 133, and the responsibility for seeking appropriations to cover the mandated costs of indigent defendants to the public defender and alternate defense counsel. Ch. 899, see. 1, 2000 Colo. Sess. Laws 2195, 2206 (Public Defender-Mandated Costs and Alternative Defense Counsel-Mandated Costs).
The record does not even remotely suggest that funds already appropriated to the public defender would have been insufficient to pay for a competent expert to observe in this case, much less that the legislature would have denied a supplemental appropriation, had one been necessary. In fact, however, the trial court did not find the defendant unable to pay for an expert or in any way condition its ultimatum on the availability of public funding for that purpose. Instead, the court simply disapproved of the CBI's refusal to permit videotaping as an alternative to contemporaneous observation by a defense expert, and it imposed a financial disincentive on the prosecution as a means of bludgeoning the CBI into changing its internal operating procedures. In doing so, I believe the trial court abused its discretion in a host of ways and for a host of reasons, not least because the defendant had no right, constitutional or otherwise, to demand that the state submit its internal operations to videotaping in lieu of permitting a defense expert to be present and observe consumptive testing in person.
Prior to the United States Supreme Court's decision in California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 418 (1984), we had construed the Due Process Clause to impose a duty upon the state to preserve discoverable evidence whenever it "might" be "favorable" to an accused. See Gareia v. Dist. Court, 197 Colo. 38, 46, 589 P.2d 924, 930 (1979). In express reliance on that standard, we set out various factors to be considered in evaluating compliance with the state's obligation to preserve evidence subject to testing, including whether the state had permitted the defense to observe destructive or consumptive testing. See People v. Gomez, 198 Colo. 105, 112, 596 P.2d 1192, 1197 (1979).
However, in Trombetta, 467 U.S. at 485, 104 S.Ct. 2528, and subsequently in Arizona v. Youngblood, 488 U.S. 51, 57-58, 109 S.Ct. 833, 102 LEd.2d 281 (1988), the United States Supreme Court made clear that a defendant's constitutional right to potentially exculpatory evidence is violated by prosecu-torial destruction only if the exculpatory value of the evidence was apparent prior to its destruction and the nature of the evidence was such that the defendant would be unable to obtain comparable evidence by other reasonably available means; or if the evidence were actually destroyed by the prosecution in bad faith. Subsequently, in People v. Great-house, we acknowledged that the due process prohibition against prosecutorial destruction of potentially exculpatory evidence, as articulated by the Supreme Court itself, was much narrower than our prior jurisprudence had anticipated, and we expressly declined to find a broader protection in the state constitution. 742 P.2d 334, 338-89 (Colo.1987); see also People v. Wyman, 788 P.2d 1278, 1279-80 (Colo.1990).
Since the United States Supreme Court has clarified the due process materiality standard for evidence not preserved by the prosecution, federal and state courts alike have concluded that the Due Process Clause places no constraints on the good faith consumptive or destructive testing of evidence by the prosecution. See Umited States v. *476Stevens, 985 F.2d 1380 (Bd Cir1991) (although serological test of small semen sample destroyed the sample, relief not warrant, ed absent evidence of bad faith); United States v. Williams, No. 06-50078, 2006 WL 1476021 (W.D.La. May 23, 2006) (government may conduct DNA testing on sample taken from gun at crime scene, even where lab would need to completely destroy the DNA sample); see also Garrett v. Lynaugh, 842 F.2d 118 (5th Cir.1988); Carlson v. Minnesota, 945 F.2d 1026 (8th Cir.1991); McDonald v. State, 952 So.2d 484 (Fla. 2006); Smith v. State, 270 Ga. 68, 508 S.E.2d 145 (1998); Lee v. State, 827 Ark. 692, 942 S.W.2d 281 (1997).
As the majority notes, the Colorado General Assembly has separately addressed the matter of consumptive testing by statute. See § 16-83-3809, C.R.S. (2006). Although its statute was adopted before the constitutional underpinnings of Gomez had been undermined in Greathouse, and therefore it erroneously presumes a constitutional duty for the prosecution to preserve evidence whenever it "might" be favorable to an accused, it in no way purports to extend a defendant's rights or expand, beyond the dictates of due process, the discretion of courts to suppress the state's evidence. In fact, rather than granting courts further authority to suppress, as the majority implies, the statute expressly bars the suppression of any results from testing that was performed in good faith and in accordance with regular procedures designed to preserve evidence that might have been favorable to the defendant.3
Even if the statute could, however, be legitimately construed to affirmatively authorize suppression for failure of the prosecution to comply with its guidelines, it could offer no support for the defendant's demand to videotape the testing procedure. Along with techniques likely to preserve the test results themselves for later comparison, like the techniques used in DNA testing, which preserve a record of images for comparison, the statute simply requires that in cases involving samples too small to be preserved for retesting by the defense, courts consider the reasonableness of contacting the defendant to make available his expert during testing. Far from authorizing the suppression of evidence for failure to comply with a demand to videotape the testing process itself or, for that matter, make any other accommodations a trial court might consider reasonable, the statute specifies precisely what the state must do to comply with its obligation. And observation of the testing process by a defense expert is expressly permitted by the CBI's operating procedures.
Nevertheless, by adopting wholesale a provision of the American Bar Association Criminal Justice Standards on DNA Evidence, the majority would authorize trial courts to order the videotaping of DNA testing and prohibit testing that does not comply with the procedures they have ordered. See maj. op. at 472-18. While I would object to this kind of legislating from the bench in any event, I find it particularly troubling when done, as the majority does here, virtually without debate or justification; in an area already regulated by the legislature; and in the very act of disapproving the trial court's order for other reasons. In fact, I am more than a little confused by the majority's adoption of a standard authorizing orders for the videotaping of DNA tests and its simultaneous disapproval of such an order before testing has actually occurred because the sample has not yet been consumed.
Whatever the majority may intend by ultimately disapproving the timing of the trial court's ultimatum in this particular case, by mischaracterizing the defendant's right to the preservation of any evidence that might be exculpatory, and as a result, overstating a trial court's discretion to vindicate that right, the majority encourages more orders of the *477kind that forced the prosecutor to petition in the first place. By simply treating as premature the trial court's resolution of the matter in advance of actual consumptive testing, the majority leaves unaddressed the question whether, and according to what criteria, the state's failure to comply with a defense request to videotape consumptive testing may later be adjudged a failure to preserve potentially exculpatory evidence, subjecting positive test results to possible exclusion.
In my view, the district court's order in this case is a blatant invasion of both executive and legislative branch prerogatives. It threatens monetary sanctions as a means of forcing the CBI to modify its internal operating procedures, even though they do not amount to a discovery violation, contemptuous conduct, or any infringement on the constitutional rights of the accused. Similarly, the court's ultimatum is nothing less than an unjustifiable interference with a rational legislative plan to provide adequate funding for the protection of the constitutional rights of indigent criminal defendants. Should the legislature come to believe the state laboratory is wasting public resources, it is more than capable of rectifying that situation. Whatever the majority may imply, I do not consider it within the discretion of trial courts to countermand legislative choices unless they are in fact unconstitutional.
I therefore concur only in the judgment of the court, making the rule absolute.
I am authorized to state that JUSTICE RICE and JUSTICE EID join in this concurrence.
. Assuming that videotaping could be accomplished without imposing additional costs in the testing process itself; and assuming that the purpose of videotaping the testing process would actually be to eliminate the costs of having a defense expert physically present during testing, rather than to create doubt in the minds of the jurors in some way other than by challenging the validity of the DNA test results; the appropriate measurement of savings would seem to be the difference between the cost of having the expert physically present to observe and the cost of videotaping the testing process plus the cost of paying for the expert's time to observe the testing on videotape.
. "Your office can pay for it. You can take up a collection among the friends of the district attorney to pay for it. You can get your friends in the legislature to get a special provision passed in the law that gets the general fund to pay for it. I don't care who pays for it. I just care who doesn't."
. Section 16-3-309, C.R.S. (2006) (Admissibility of laboratory test results):
(1) When evidence is seized in so small a quantity or unstable condition that qualitative laboratory testing will not leave a sufficient quantity of the evidence for independent analysis by the defendant's expert and when a state agent, in the regular performance of his duties, can reasonably foresee that the evidence might be favorable to the defendant, the trial court shall not suppress the prosecution's evidence if the court determines that the testing was performed in good faith and in accordance with regular procedures designed to preserve the evidence which might have been favorable to the defendant. (emphasis added).