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 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
