The State appealed the trial magistrate’s decision to dismiss the charged violation of R.I.G.L. 1956 § 31-27-2.1 (refusal to submit to chemical test). The State argued that the trial magistrate misapplied the three-part analysis set out in State v. Garcia, 643 A.2d 180 (R.I. 1994), to determine whether the failure of law enforcement to preserve evidence amounted to an infringement of a defendant’s due process rights. Here, defense counsel sent a letter to the police department asking for a copy of a videotape depicting the Defendant in the police station at the time of his arrest.  The police department responded with information about how to review and copy the videotape, and subsequently “recycled” it before the Defendant had an opportunity to view it. Garcia requires a defendant to establish: (1) that the evidence possessed an apparent exculpatory value; (2) that comparable evidence is unobtainable by reasonably available means; and (3) that the state destroyed the evidence in bad faith. The Panel held that the trial magistrate did not have competent evidence to find that the videotape was exculpatory where defense counsel argued only that viewing the videotape the videotape was necessary in order to “know exactly what happened in regards to the purported refusal.” The Panel noted that the mere possibility that the videotape could have exculpated the Defendant was not enough. The Panel also held that the trial magistrate misapplied the prevailing legal authority of State v. Werner, 851 A.2d 1093, 1106 (R.I. 2004), for “bad faith” by finding that the police department’s negligent “recycling” of the videotape amounted to bad faith. Accordingly, the Panel concluded that the trial magistrate’s decision to dismiss the charged violation was in error and remanded for a hearing on the merits.