JUSTICE STEIGMANN delivered the opinion of the court:

In February 2002, the State charged defendant, Karl A.Gallaher, with possession of a methamphetamine-manufacturingchemical--namely, anhydrous ammonia (count I) (720 ILCS 570/401(d-5)(West 2002)) and unlawful transportation of anhydrous ammonia (countII) (720 ILCS 5/21-1.5(b-5) (West 2002)). In March 2002, defendantmoved to dismiss, alleging that (1) count I failed to state anoffense; and (2) he was denied due process because the State destroyed the alleged anhydrous ammonia. The trial court later dismissed count I but denied defendant's motion to dismiss count II.

Following a July 2002 stipulated bench trial, the trialcourt convicted defendant of count II. The court later sentenced himto 24 months' probation.

Defendant appeals, arguing only that the trial court erredby denying his motion to dismiss count II. We disagree and affirm.

On February 1, 2002, a confidential source contacted theSpringfield police department and informed officers that defendantintended to steal a quantity of anhydrous ammonia. (Anhydrousammonia is a "commercial fertilizer of ammonia gas in compressed andliquified form" (505 ILCS 80/3(d) (West 2002); 720 ILCS 5/21-1.5(b-10) (West 2002)).) Around 10 p.m., Sangamon County sheriff's sergeant Wes Barr pulled over a truck near the intersection of Sand Hilland Peoria Road in Springfield. Defendant was in the front passengerseat, and the confidential source was in the driver seat. As defendant got out of the truck, a "coffee[-]style" Thermos fell on theground. The confidential source later informed the police that theThermos contained anhydrous ammonia. During an interview withofficers, defendant ultimately admitted that (1) the Thermos contained anhydrous ammonia, and (2) he had been involved in stealingthe anhydrous ammonia. The police believed that a Thermos was not asuitable container for transporting anhydrous ammonia, so a Springfield police detective contacted Safety-Kleen Corporation and requested that it pick up and dispose of the anhydrous ammonia. OnFebruary 2, 2002, Safety-Kleen transported the anhydrous ammonia to awaste-disposal facility and later disposed of it. No testing of thesubstance occurred.

Later in February 2002, the State charged defendant withpossession of a methamphetamine-manufacturing chemical (count I) (720ILCS 570/401(d-5) (West 2002)) and unlawful transportation of anhydrous ammonia (count II) (720 ILCS 5/21-1.5(b-5) (West 2002)). InMarch 2002, defendant filed a motion to dismiss the charging instrument, arguing that (1) count I failed to state an offense becausesection 102(z-1) of the Illinois Controlled Substances Act does notlist anhydrous ammonia as one of the prohibited methamphetamine-manufacturing chemicals (720 ILCS 570/102(z-1) (West 2002)); and (2)he was denied due process because the State destroyed the allegedanhydrous ammonia without (a) performing a chemical analysis of thesubstance or (b) allowing defendant to obtain a sample for chemicalanalysis. Following an April 2002 hearing on defendant's motion, thetrial court dismissed count I and requested that the parties filememoranda addressing defendant's due process argument.

Later in April 2002, the State filed a memorandum, arguing, in pertinent part, that (1) the anhydrous ammonia, which wasbeing transported in an ill-equipped container, created "an immediateand real danger to the public and to law enforcement officers"; and(2) Springfield police officers followed established guidelines fordealing with toxic and hazardous materials when they requested thatSafety-Kleen dispose of the anhydrous ammonia. Attached to theState's memorandum was the affidavit of James O'Brien, the longtimemanager of statewide emergency response for the Illinois Environmental Protection Agency (Illinois EPA). O'Brien averred, in pertinentpart, as follows:

(1) He was familiar with anhydrous ammonia, which is a form of ammonia manufactured"to be without any associated water."

(2) Anhydrous ammonia is commerciallystored as a liquid at high pressure.

(3) Methamphetamine manufacturing by the"Nazi[-]dope" method requires liquid anhydrousammonia.

(4) When anhydrous ammonia is releasedfrom a pressurized container, the liquid turnsinto vapor and expands to 850 times the volumeof the liquid form.

(5) Such an expansion "presents a forcefulrupture hazard if the vapor is tightly confinedin a non[]pressure container such as consumercoolers or [T]hermoses," and if the expandingvapor is released inside a building, the expansion can quickly fill large areas with toxicand potentially explosive concentrations ofammonia vapor.

(6) Attempting to save a [T]hermos ofanhydrous ammonia would be futile because theliquid would eventually evaporate, and in aclosed space, the resulting vapors would createa threat to public health and safety.

(7) Leaking anhydrous ammonia could burnan individual's lungs, cause blindness, or result in death.

(8) Storing or transporting liquid anhydrous ammonia in anything but a pressurizedcontainer constructed specifically for thatpurpose is "extremely dangerous."

(9) Once a person stores anhydrous ammoniain an inappropriate container, "it would beincredibly difficult to put the gas or liquidback into an appropriate container that wouldprotect human health or the environment" (emphasis in original).

(10) The Illinois EPA does not have high-pressure pumps that are suitable to"re[]contain" anhydrous ammonia in anappropriate container.

(11) The Illinois EPA does not storegases, such as anhydrous ammonia, or test themin its laboratory facilities. (12) No commonly available means exists forsaving a sample of anhydrous ammonia.

(13) In O'Brien's opinion, the prudentapproach for disposing of anhydrous ammoniastored in an inappropriate container would beto engage the services of an experiencedhazardous materials cleanup contractor, such asSafety-Kleen, which can dispose of thesubstance at a permitted disposal facility.

Defendant then filed a reply memorandum, alleging, inpertinent part, that it would have been feasible to preserve andanalyze the alleged anhydrous ammonia without jeopardizing publicsafety. Attached to the memorandum was the affidavit of BillyFairless, a Southern Illinois University lecturer in analyticalchemistry. Fairless averred, in pertinent part, as follows:

(1) He worked for the United States EPAfrom 1973 until 1999, first as an analyticalchemist and then as the director of theenvironmental services division.

(2) "While anhydrous ammonia can bedangerous if not handled properly, it can bepreserved and subsequently chemicallyanalyzed[,] provided it is handled and storedin a controlled environment."

(3) "It would be feasible to preserveanhydrous ammonia in liquid form by storing itat 33 degrees Celsius below zero."

(4) "It would be feasible to subsequentlychemically analyze the preserved anhydrousammonia utilizing [g]as [c]hromatography/[m]ass[s]pectrometry" technology.

In June 2002, the trial court entered an order denyingdefendant's motion to dismiss count II (unlawful transportation ofanhydrous ammonia), and following a July 2002 stipulated bench trial,the court convicted defendant of that count. That same day, thecourt sentenced him to 24 months' probation.

This appeal followed.

II. ANALYSIS

A. Standard of Review

Initially, we reject defendant's contention that we mustreview de novo the trial court's denial of his motion to dismiss.

A trial court possesses the inherent authority to dismissa charge when the failure to do so would result in the deprivation ofdue process or a miscarriage of justice. People v. Newberry, 166Ill. 2d 310, 313-14, 652 N.E.2d 288, 290 (1995). Where--as in thiscase--the trial court's decision to grant or deny a motion to dismisscharges requires the evaluation of evidence to reach a fair and justresult, we will review the court's decision under an abuse-of-discretion standard. See People v. Walker, 257 Ill. App. 3d 332,336, 628 N.E.2d 971, 974 (1993) (a ruling on a motion to dismissbased on a due process claim "is entitled to great deference and willbe sustained absent a clear abuse of discretion"); People v.Williams, 137 Ill. App. 3d 736, 740, 484 N.E.2d 1191, 1195 (1985)(concluding that the trial court did not abuse its discretion byrefusing to dismiss charges against the defendant where a "dueprocess violation was not established with certainty"). The merefact that the court did not hear the testimony of witnesses, but,instead, considered affidavits of experts, does not alter thestandard of review. By presenting evidence by affidavit--anefficient procedure for which we commend the parties and the court--the parties apparently agreed that the affiants were trustworthy. Nonetheless, the court was required to evaluate the affidavits anddetermine which affiant's testimony was more persuasive. Under suchcircumstances, the court's decision is still entitled to greatdeference.

In this regard, this case is analogous to Donaldson v.Central Illinois Public Service Co., 199 Ill. 2d 63, 76, 767 N.E.2d314, 323 (2002), in which the supreme court held that Frye issues,including general acceptance of a scientific technique, are reviewedunder an abuse-of-discretion standard. This standard of reviewapplies for Frye issues even though in conducting a Frye evidentiaryhearing, the court is not required to strictly comply with rules ofevidence and may consider evidence such as affidavits of experts,scientific publications, and law review articles. Bachman v. GeneralMotors Corp., 332 Ill. App. 3d 760, 782, 776 N.E.2d 262, 283 (2002).
 

B. The Trial Court's Denial of Defendant's
Motion To Dismiss Count II

Defendant argues that the trial court erred by denying hismotion to dismiss count II. Specifically, relying on Newberry, 166Ill. 2d 310, 652 N.E.2d 288, he contends that the State's destructionof the alleged anhydrous ammonia, without conducting a chemicalanalysis or allowing defendant to conduct such an analysis, violatedhis due process rights. We disagree.

If this case were a controlled-substance case (involvingcocaine, for example), we would agree with defendant that Newberryrequired dismissal of the charging instrument. However, this is notsuch a case, and we refuse to extend Newberry's destruction-of-outcome-determinative-evidence rule beyond such standard drug cases. We thus decline to apply Newberry to this case, which involves adangerous substance. To mechanically apply Newberry under suchcircumstances would force the police to attempt to preservesubstances that are dangerous and cannot be stored safely.

Defendant correctly points out that in Newberry, 166 Ill.2d at 311, 652 N.E.2d at 289, our supreme court held that when adefendant is charged with possession of a controlled substance andthe State destroys the substance in question after defendant hasfiled a discovery request, dismissal of the charge is mandated by dueprocess. In that case, the initial testing of the substance seizedfrom the defendant yielded a negative result for the presence ofdrugs, and the State charged the defendant with unlawfully possessinga look-alike substance with intent to distribute. A laboratory testconducted one month after the defendant's arrest indicated that thesubstance was cocaine. The State then dropped the look-alike drugcharge and charged the defendant with various offenses related to theunlawful possession of a controlled substance. Newberry, 166 Ill. 2dat 312, 652 N.E.2d at 289. The defendant later timely filed awritten discovery motion, pursuant to Supreme Court Rule 412 (188Ill. 2d R. 412), which included a request to examine all tangibleobjects that had been seized from him. Newberry, 166 Ill. 2d at 312,652 N.E.2d at 290. A year later, the parties discovered that anevidence technician had destroyed the substance after he learned thatthe look-alike drug charge had been dropped and mistakenly assumedthat the case against the defendant was over and the substance was nolonger needed. Newberry, 166 Ill. 2d at 313, 652 N.E.2d at 290.

The Newberry court recognized that in Arizona v.Youngblood, 488 U.S. 51, 58, 102 L. Ed. 2d 281, 289, 109 S. Ct. 333,337 (1988), the United States Supreme Court held that whenevidentiary material is merely "'potentially useful,'" the State'sdestruction of that material constitutes a denial of due process onlyif a criminal defendant can show that the State acted in bad faith. Newberry, 166 Ill. 2d at 315, 652 N.E.2d at 291. The YoungbloodCourt rejected the defendant's due process challenge to hisconviction because the destroyed material was not essential toestablishing his guilt and the defendant failed to establish badfaith. Newberry, 166 Ill. 2d at 314-15, 652 N.E.2d at 291, citingYoungblood, 488 U.S. at 57, 102 L. Ed. 2d at 289, 109 S. Ct. at 337.

The Newberry court distinguished Youngblood because theevidence (the alleged cocaine) was "essential to and determinative ofthe outcome of the case," not just "'potentially useful.'" Newberry,166 Ill. 2d at 315, 652 N.E.2d at 291. The court also noted that thedefendant had no realistic hope of exonerating himself without theopportunity to have the substance examined by his own experts. Newberry, 166 Ill. 2d at 315, 652 N.E.2d at 291. The court thus heldthat under such circumstances, the defendant was not required to showbad faith on the State's part, and the dismissal of the chargesagainst him was mandated by due process. Newberry, 166 Ill. 2d at317, 311, 652 N.E.2d at 292, 289.

We conclude that Newberry does not apply to this case andagree with the Supreme Court of Colorado, which determined thatpolice properly destroyed ether found in the defendant's car, statingas follows:

"[T]he destruction[-]of[-]evidence rule cannotbe applied mechanically in a way that endangersthe lives of public safety officers or forcesthe police to preserve hazardous substanceswhich cannot be stored safely. The purpose ofthe destruction[-]of[-]evidence rule is toprotect the integrity of the truth-findingprocess and to deter police misconduct. [Citation.] Neither of these policies isfurthered by a rule that unnecessarily exposesthe police to dangers of chemical explosions. *** We will not impose on the prosecution aduty to preserve high explosives, homemadebombs[,] or dangerous materials if thatrequirement would endanger lives and the publicsafety." People v. Clements, 661 P.2d 267, 273(Colo. 1983).

This case does not involve a challenge to the sufficiencyof the evidence against defendant. Instead, the sole issue beforethis court is whether a criminal defendant charged with an offenseinvolving a dangerous substance is entitled to have the chargedismissed if the State destroys the substance without testing it orallowing the defendant to do so. We hold that this determinationinvolves a two-step process.

First, the defendant must show that the destroyedsubstance was "essential to and determinative of" the outcome of hiscase, not just "potentially useful." See Newberry, 166 Ill. 2d at315, 652 N.E.2d at 291.

Second, if the defendant makes such a showing, the burdenthen shifts to the State to show that the destruction of thedangerous substance was necessary. See generally People v.Dodsworth, 60 Ill. App. 3d 207, 210, 376 N.E.2d 449, 452 (1978) (inwhich this court held that when the State destroys evidence "at theheart of the State's case," the State bears the burden of showingthat the destruction was either necessary or could be excused); seealso People v. Thompson, 265 Ill. App. 3d 413, 417-18, 638 N.E.2d363, 367 (1994) (discussing the two-step burden-shifting process whendetermining whether a charge should be dismissed due to delay).

If the defendant cannot show that the destroyed substancewas essential to and determinative of the outcome of his case, thenthe defendant must establish bad faith on the State's part. SeeYoungblood, 488 U.S. at 58, 102 L. Ed. 2d at 289, 109 S. Ct. at 337.

In this case, no one disputes that the substance wasessential to and determinative of the outcome of defendant's case. Defendant was charged with unlawful transportation of anhydrousammonia (720 ILCS 5/21-1.5(b-5) (West 2002)), and he could not beconvicted of that charge without proof of the content of thesubstance contained in the Thermos.

The burden thus shifted to the State to show that thedestruction of the substance was necessary. Contrary to defendant'scontention, the State clearly showed through O'Brien's affidavit thatthe destruction of the substance (which both defendant and theconfidential source admitted was anhydrous ammonia) was necessary. Although Fairless averred in his affidavit that it is "feasible" topreserve anhydrous ammonia by storing it at minus 33 degrees Celsius(minus 27.4 degrees Fahrenheit), he did not indicate that such astorage facility exists or, if it exists, how a Thermos of anhydrousammonia can be safely transported there.

On this record, we conclude that the State met its burdenof showing that the destruction of the anhydrous ammonia wasnecessary. Accordingly, we further conclude that the trial court didnot err by denying defendant's motion to dismiss count II.

For the reasons stated, we affirm the trial court'sjudgment.

Affirmed.

COOK and MYERSCOUGH, JJ., concur.