This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum
opinions. Please also note that this electronic memorandum opinion may contain
computer-generated errors or other deviations from the official paper version filed by the Court of
Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 35,622
5 ADAM EDWARDS,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Brett R. Loveless, District Judge
9 Hector H. Balderas, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Bennett J. Baur, Chief Public Defender
13 Santa Fe, NM
14 Steven J. Forsberg, Assistant Public Defender
15 Albuquerque, NM
16 for Appellant
17 MEMORANDUM OPINION
18 VIGIL, Chief Judge.
1 {1} Defendant has appealed from a conviction for DWI. We previously issued a
2 notice of proposed summary disposition in which we proposed to uphold the
3 conviction. Defendant has filed a memorandum in opposition. After due consideration,
4 we remain unpersuaded. We therefore affirm.
5 {2} We previously set forth the pertinent background information, which Defendant
6 does not dispute. [MIO 1] We will therefore avoid undue reiteration here, focusing
7 instead on the content of the memorandum in opposition.
8 {3} Defendant has challenged the admission of his BrAT results on the theory that
9 the State failed to establish compliance with a regulation concerning the number of
10 samples to be taken. See 7.33.2.15(B)(2) NMAC (providing that as a general rule, two
11 samples are to be taken; three samples are required only if the difference in the results
12 exceeds 0.02). However, the testimony of the administering officer that he had
13 obtained two samples from Defendant, the results of which were 0.10 and 0.12,
14 supplied sufficient evidence of compliance to support the district court’s ruling. See
15 generally State v. Martinez, 2007-NMSC-025, ¶ ¶ 7, 21, 141 N.M. 713, 160 P.3d 894
16 (providing that the State must demonstrate compliance with accuracy-ensuring
17 regulations by a preponderance of the evidence, and that on appeal, the trial court’s
18 ruling is reviewed for abuse of discretion).
2
1 {4} In his memorandum in opposition Defendant continues to argue that insofar as
2 the machine was capable of measuring BrAC to three decimal places, it is possible
3 that rounding might have occurred in arriving at the double-digit test results, which
4 could have effectively concealed an actual disparity in excess of 0.02 apart. [MIO 1-
5 2] However, as Defendant acknowledges, no evidence was presented below to
6 substantiate that theory. [MIO 1] In the absence of such evidentiary support,
7 Defendant invites the Court to take judicial notice of an operator’s manual which is
8 not of record. [MIO 1-2] However, because it does not concern a matter of common
9 knowledge, we must decline the invitation. See State v. Erikson K., 2002-NMCA-058,
10 ¶ 24, 132 N.M. 258, 46 P.3d 1258 (“A court may take judicial notice of adjudicative
11 facts that are not subject to reasonable dispute. Such facts must be matters of common
12 and general knowledge which are well established and authoritatively settled.”
13 (alteration, internal quotation marks, and citation omitted)).
14 {5} Accordingly, for the reasons set forth in the notice of proposed summary
15 disposition and above, we affirm.
16 {6} IT IS SO ORDERED.
17 _________________________________
18 MICHAEL E. VIGIL, Chief Judge
3
1 WE CONCUR:
2 ____________________________
3 TIMOTHY L. GARCIA, Judge
4 ____________________________
5 STEPHEN G. FRENCH, Judge
4