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STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
FERNANDO SILVA,
Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY, Karen
L. Townsend, District Judge
Gary K. King, Attorney General, Santa Fe,
NM, for Appellee
Bennett J. Baur, Acting Chief Public
Defender, Kimberly Chavez Cook, Assistant Appellate Defender, Santa Fe, NM, for
Appellant
CYNTHIA A. FRY, Judge. WE CONCUR: RODERICK
T. KENNEDY, Chief Judge, LINDA M. VANZI, Judge
{1} Defendant appeals
his conviction for driving while under the influence (DWI, 2nd offense). We
issued a notice of proposed summary disposition, proposing to uphold the
conviction. Defendant has filed a memorandum in opposition. After due
consideration, we remain unpersuaded by Defendant’s assertions of error. We
therefore affirm.
{2} In his docketing
statement Defendant raised a single issue, contending that the district court
“erred in considering testimony as to whether noncompliance with SLD procedures
affected the validity of the breathalyzer result instead of determining whether
SLD procedures were, in fact, followed.” [DS 3] In our notice of proposed
summary disposition we observed that Defendant’s issue appeared to concern the
admissibility of expert testimony presented by the State, to the effect that
the presence of the subject’s own blood in his mouth would have no impact on
the accuracy of the breathalyzer test results. [CN 2-3] Because we found no
indication that Defendant objected to this testimony below, we posited that the
issue had not been preserved. [CN 3] We further noted that the evidence in
question appeared to have been properly admitted, insofar as it shed light on
both the proper interpretation of SLD regulations and on the ultimate
admissibility of Defendant’s BAT results. [CN 4] Defendant does not respond to
our analysis relative to the foregoing evidentiary challenge. As a result, the
issue is deemed abandoned.
See State v. Martinez,
97 N.M. 585, 586,
642
P.2d 188, 189 (Ct. App. 1982) (observing that an issue is deemed abandoned if a
party fails to respond to the calendar notice’s proposed summary disposition of
the issue).
{3} In his memorandum
in opposition Defendant now argues that the district court erred in admitting
his breath-alcohol test results. [MIO 10-19] Because this argument was not set
forth in the docketing statement, we interpret the memorandum in opposition as
a motion to amend the docketing statement. Such a motion will only be granted
if the issue sought to be raised is viable.
See State v. Moore,
109 N.M.
119, 129,
782 P.2d 91, 101 (Ct.App. 1989). For the reasons that follow, we deny
the motion.
{4} Defendant contends
that Regulation
7.33.2.12(B)(1) NMAC (4/30/2010), which requires the
administrator to “ascertain[] that the subject has not had anything to eat,
drink or smoke for at least [twenty] minutes prior to collection of the first
breath sample” was not satisfied in this case, in light of evidence that some
quantity of Defendant’s own blood entered his mouth. [MIO 10-19]
{5} Prior to the
admission of breath-alcohol test results, the district court must find by a
preponderance of the evidence that all accuracy-ensuring regulations have been
satisfied.
State v. Willie,
2009-NMSC-037, ¶ 12,
146 N.M. 481,
212 P.3d
369;
State v. Martinez,
2007-NMSC-025, ¶ 21,
141 N.M. 713,
160 P.3d 894.
To the extent that Defendant invites the Court to apply a different standard of
review, [MIO 11] we decline.
See generally State v. Wilson,
116
N.M. 793, 796,
867 P.2d 1175, 1178 (1994) (holding that the Court of Appeals is
bound by Supreme Court precedent).
{6} Below, the State
presented the testimony of the officer who arrested Defendant and who
administered the BAT. He indicated that he complied with the 20-minute
deprivation period, insofar as Defendant did not ingest any foreign substances.
[RP 140-42] He also testified that he did not see any blood in Defendant’s
mouth, and the machine did not register any foreign substances or produce any
error code. [RP 141-42] The State also presented expert testimony indicating
that the presence of the test subject’s own blood within the mouth or stomach
would not compromise the accuracy of the test results. [RP 146] We conclude
that this is sufficient to support, by a preponderance of the evidence, the
district court’s determination that the regulation had been satisfied. [RP 148]
See generally Willie,
2009-NMSC-037, ¶ 13 (observing that the purpose of
the regulation in question is to ensure accurate results, and interpreting the
regulation in a manner which allows for case-by-case development, consistent
with the regulation’s “obvious spirit or reason” (internal quotation marks
omitted)).
{7} Defendant attempts
to dispute the testimony of the State’s expert, based on an article published
in a scientific journal. [MIO 13-15] However, we find no indication that this
was presented below. [MIO 13-15; RP 138-48] As a result, we will not consider
it on appeal.
See generally In re N.M. Indirect Purchasers Microsoft
Corp. Antitrust Litig.,
2007-NMCA-007, ¶ 24,
140 N.M. 879,
149 P.3d 976
(“An appellate court does not review a district court decision on the basis of
facts that . . . were not before the court below when it made its ruling.”);
State
v. Hunter,
2001-NMCA-078, ¶ 18,
131 N.M. 76,
33 P.3d 296 (“Matters not of
record present no issue for review.”).
{8} Defendant also
attacks that district court’s statement that it would have found that Defendant
did not have any blood in his mouth, if such a finding was necessary. [MIO
17-19; RP 148] However, the district court’s determination appears to be
supported by the testimony of the test administrator, to the effect that he
observed no blood in Defendant’s mouth or on the mouthpiece, [RP 141] as well
as expert testimony that the “printout” associated with Defendant’s BAT
contained nothing to indicate either that there was blood in the system or that
there was mouth alcohol present. [RP 145] We therefore reject Defendant’s
argument.
{9} Accordingly, for
the reasons stated above and in the notice of proposed summary disposition, we
affirm.
RODERICK T. KENNEDY, Chief Judge