This memorandum opinion was not selected for pub lication 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3 v. No. 32,565 4 FERNANDO SILVA, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 7 Karen L. Townsend, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Bennett J. Baur, Acting Chief Public Defender 12 Kimberly Chavez Cook, Assistant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 FRY, Judge. 17 {1} Defendant appeals his convi ction for driving while under the influence (DWI, 18 2nd offense). We issued a notice of proposed summary disposition, proposing to 19 uphold the conviction. Defendant has f iled a memorandum in opposition. After due 202 consideration, we remain unpersuaded by Defendant’s a ssertions of error. We 1 therefore affirm. 2 {2} In his docketing statement Defendant rais ed a single issue, contending that the 3 district court “erred in considering tes timony as to whether noncompliance with SLD 4 procedures affected the validity of the breathalyzer result instead of determining 5 whether SLD procedures were , in fact, followed.” [DS 3] In our notice of proposed 6 summary disposition we observed that Defendant’s issue appeared to concern the 7 admissibility of expert testimony presented by the State, to the effect that the presence 8 of the subject’s own blood in his mouth w ould have no impact on the accuracy of the 9 breathalyzer test results. [CN 2-3] Becau se we found no indication that Defendant 10 objected to this testimony below, we posited that the issue had not been preserved. 11 [CN 3] We further noted that the evidence in question appeared to have been properly 12 admitted, insofar as it shed light on both the proper interpretati on of SLD regulations 13 and on the ultimate admissibility of Defendant’s BAT results. [CN 4] Defendant does 14 not respond to our analysis relative to the foregoing evidentiary challenge. As a 15 result, the issue is deemed abandoned. See State v. Martinez , 97 N.M. 585, 586, 642 16 P.2d 188, 189 (Ct. App. 1982) ( observing that an issue is deemed abandoned if a party 17 fails to respond to the calendar notice’s proposed summary disposition of the issue). 183 {3} In his memorandum in opposition Defendant now argues that the district court 1 erred in admitting his breath-alcohol test results. [MIO 10-19] Because this argument 2 was not set forth in the docketing statement, we interpret the memorandum in 3 opposition as a motion to amend the docketing statement. Such a motion will only be 4 granted if the issue sought tobe raised is viable. See State v. Moore , 109 N.M. 119, 5 129, 782 P.2d 91, 101 (Ct.App. 1989). For the reasons that follow, we deny the 6 motion. 7 {4} Defendant contends that Regulation 7.33.2.12(B)(1 ) NMAC (4/30/2010), which 8 requires the administrator to “ascertain[] th at the subject has not had anything to eat, 9 drink or smoke for at least [twenty] minutes prior to collection of the first breath 10 sample” was not satisfied in this case, inlight of evidence that some quantity of 11 Defendant’s own blood entere d his mouth. [MIO 10-19] 12 {5} Prior to the admission of breath-alcohol test results, the district court must find 13 by a preponderance of the evidence that all accuracy-ensuring regulations have been 14 satisfied. State v. Willie , 2009-NMSC-037, ¶ 12, 146 N.M. 481, 212 P.3d 369; State 15 v. Martinez , 2007- NMSC-025, ¶ 21, 141 N.M. 713, 160 P.3d 894. To the extent that 16 Defendant invites the Court to apply a di fferent standard of review, [MIO 11] we 17 decline. See generally State v. Wilson , 116 N.M. 793, 796, 867 P.2d 1175, 1178 18 (1994) (holding that the Court of Appeals is bound by Supreme Court precedent). 194 {6} Below, the State presented the testimony of the officer who arrested Defendant 1 and who administered the BAT. He indi cated that he complied with the 20-minute 2 deprivation period, insofar as Defendant did not ingest any foreign substances. [RP 3 140-42] He also testified that he did not see any blood in Defendant’s mouth, and the 4 machine did not register any foreign subs tances or produce any error code. [RP 141- 5 42] The State also presented expert testimony indicating that the presence of the test 6 subject’s own blood within the mouth or stomach would not compromise the accuracy 7 of the test results. [RP 146] We conclude that this is suffic ient to support, by a 8 preponderance of the evidence, the district court’s determination that the regulation 9 had been satisfied. [RP 148] See generally Willie , 2009-NMSC-037, ¶ 13 (observing 10 that the purpose of the regulation in ques tion is to ensure accurate results, and 11 interpreting the regulation in a manner which allows for case-by-case development, 12 consistent with the regulation’s “obvious spirit or reason” (internal quotation marks 13 omitted)). 14 {7} Defendant attempts to dispute the tes timony of the State’s expert, based on an 15 article published in a scientific journal. [M IO 13-15] However, we find no indication 16 that this was presented below. [MIO 13-15; RP 138-48] As a result, we will not 17 consider it on appeal. See generally In re N.M. Indirect Purchasers Microsoft Corp. 18 Antitrust Litig ., 2007-NMCA-007, ¶ 24, 140 N.M. 879, 149 P.3d 976 (“An appellate 195 court does not review a district court decisi on on the basis of facts that . . . were not 1 before the court below wh en it made its ruling.”); State v. Hunter, 2001-NMCA-078, 2 ¶ 18, 131 N.M. 76, 33 P.3d 296 (“Matters not of record present no issue for review.”). 3 {8} Defendant also attacks that district court’s statement that it would have found 4 that Defendant did not have any blood in his mouth, if such a finding was necessary. 5 [MIO 17-19; RP 148] However, the distri ct court’s determination appears to be 6 supported by the testimony of the test administrator, to the effect that he observed no 7 blood in Defendant’s mouth or on the mouthpiece, [RP 141] as well as expert 8 testimony that the “printout” associated with Defendant’s BAT contained nothing to 9 indicate either that there was blood in th e system or that there was mouth alcohol 10 present. [RP 145] We therefore reject Defendant’s argument. 11 {9} Accordingly, for the reasons statedabove and in the notice of proposed 12 summary disposition, we affirm. 13 {10} IT IS SO ORDERED. 14

15 CYNTHIA A. FRY, Judge 16 WE CONCUR: 17 18 RODERICK T. KENNEDY, Chief Judge 196 1 LINDA M. VANZI, Judge 2