{12} In evaluating the constitutionality of the Board's application of this professional regulation, we apply the four-part O'Brien test. State v. Ongley, 118 N.M. 431, 433, 882 P.2d 22, 24 (Ct. App. 1994). Under the O'Brien test, the law will be upheld as constitutional if it satisfies each of the following elements:

{12} In evaluating the constitutionality of the Board's application of this professional regulation, we apply the four-part O'Brien test. State v. Ongley, 118 N.M. 431, 433, 882 P.2d 22, 24 (Ct.App.1994). Under the O'Brien test, the law will be upheld as constitutional if it satisfies each of the following elements:

{13} We must initially determine whether the CDM statute is content based in order to determine the constitutional framework under which to analyze Defendant's challenge. See Ebert, 2011–NMCA–098, ¶ 8, 150 N.M. 576, 263 P.3d 918 (applying strict scrutiny to a content-based prohibition); State v. Ongley, 118 N.M. 431, 433, 882 P.2d 22, 24 (Ct.App.1994) (applying intermediate scrutiny to a challenge to a criminal statute that did not “restrict[ ] free expression based on the content of what is expressed”). Citing United States v. Playboy Entm't Grp., Inc., 529 U.S. 803, 811–12, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000), Defendant argues that the CDM statute is content based because “the regulation of the prohibited conduct ‘focuses only on the content of the speech and the direct impact that speech has on its listeners' [and] the [United States Supreme] Court has indicated that such an action ‘is the essence of content-based regulation.’ ”

{13} We must initially determine whether the CDM statute is content based in order to determine the constitutional framework under which to analyze Defendant's challenge. See Ebert, 2011-NMCA-098, ¶ 8 (applying strict scrutiny to a content-based prohibition); State v. Ongley, 118 N.M. 431, 433, 882 P.2d 22, 24 (Ct. App. 1994) (applying intermediate scrutiny to a challenge to a criminal statute that did not "restrict[] free expression based on the content of what is expressed"). Citing United States v. Playboy Entm't Grp., Inc., 529 U.S. 803, 811-12 (2000), Defendant argues that the CDM statute is content based because "the regulation of the prohibited conduct 'focuses only on the content of the speech and the direct impact that speech has on its listeners' [and] the [United States Supreme] Court has indicated that such an action 'is the essence of content-based regulation.'"

This rule has been followed in a number of cases. See, e.g., De Jesus-Santibanez, 119 N.M. at 580, 893 P.2d at 476; State v. Ongley, 118 N.M. 431, 432, 882 P.2d 22, 23 (Ct.App. 1994); State v. Montoya, 116 N.M. 297, 301, 861 P.2d 978, 982 (Ct.App. 1993); State v. Ramos, 115 N.M. 718, 721-22, 858 P.2d 94, 97-98 (Ct.App. 1993); State v. Allen, 114 N.M. 146, 147, 835 P.2d 862, 863 (Ct.App. 1992). The rule in Sutton appears to have provided adequate guidance in the cases in which it has been applied, when state constitutional claims were either novel or interchangeable with federal constitutional claims, but this case requires a refinement of that rule.

Further, we have previously held that “the protection of the federal and state constitutions are the same, at least with respect to content-neutral restrictions.” State v. Ongley, 118 N.M. 431, 432, 882 P.2d 22, 23 (Ct.App.1994), modified on other grounds by Gomez, 1997–NMSC–006, 122 N.M. 777, 932 P.2d 1;see State v. Rendleman, 2003–NMCA–150, ¶ 58, 134 N.M. 744, 82 P.3d 554,overruled on other grounds by State v. Myers, 2009–NMSC–016, 146 N.M. 128, 207 P.3d 1105. Thus, we see no reason to depart from traditional federal jurisprudence in this area, and we proceed with a standard First Amendment analysis.

We find none of those three situations to apply in the case before us. Further, we have previously held that "the protection of the federal and state constitutions are the same, at least with respect to content-neutral restrictions." State v. Ongley, 118 N.M. 431, 432, 882 P.2d 22, 23 (Ct. App. 1994), modified on other grounds by Gomez, 1997-NMSC-006; see State v. Rendleman, 2003-NMCA-150, ¶ 58, 134 N.M. 744, 82 P.3d 554, overruled on other grounds by State v. Myers, 2009-NMSC-016, 146 N.M. 128, 207 P.3d 1105. Thus, we see no reason to depart from traditional federal jurisprudence in this area, and we proceed with a standard First Amendment analysis.

Article II, § 17 of the New Mexico Constitution provides: "Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right. . . ." While "applicable precedents have determined that the protection of the federal and state constitutions are the same, at least with respect to content-neutral restrictions[,]" State v. Ongley, 118 N.M. 431, 432, 882 P.2d 22, 23 (Ct.App. 1994), modified on other grounds by State v. Gomez, 1997-NMSC-006, ¶ 32, 122 N.M. 777, 932 P.2d 1; Stuckey's Stores, Inc. v. O'Cheskey, 93 N.M. 312, 318, 600 P.2d 258, 264 (1979), this Court has interpreted our state constitution more broadly than the federal constitution with respect to content-based restrictions. Fawcett, 114 N.M. at 547, 843 P.2d at 849.

Defendant's argument focused on whether the information in the BOLO was enough to stop the truck and whether additional information from the BOLO was enough for a second stop. We hold that, by failing to even articulate the issues Defendant raises on appeal about the informant's credibility and the trustworthiness of his information, Defendant has waived her claim that the informant's reliability was not sufficiently shown under the New Mexico Constitution. See State v. Ongley, 118 N.M. 431, 432, 882 P.2d 22, 23 (Ct.App. 1994); see also State v. Lucero, 104 N.M. 587, 590, 725 P.2d 266, 269 (Ct.App. 1986) (well settled that issues must be raised below to preserve them for appellate review, and manner in which issues are raised must be sufficiently specific to allow trial court to make an intelligent ruling). Although refusing to consider appellate contentions because of lack of preservation may appear harsh at first blush, consideration of the specific circumstances of this case will show that it is particularly appropriate to apply the lack-of-preservation rule here. Our recent cases have refused to consider contentions raised for the first time on appeal when the failure to raise those contentions in the trial court has deprived the prevailing party of an opportunity to develop facts that might bear on the contentions.