This memorandum opinion was not selected for publi cation in the New Mexico Reports. Please see 1 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 2 also note that this electronic memorandum opinion may contain computer-generated errors or other 3 deviations from the official paper version file d by the Court of Appeals and does not include the 4 filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 LESTER BROWNING, 7 Plaintiff-Appellant, 8

v. NO. 29,919 9 ROBERT MELTON, SAN JUAN 10 COUNTY SHERIFF, SAN JUAN 11 COUNTY SHERIFF’S OFFICE, 12 TOM HAVEL, DIRECTOR, SAN 13 JUAN COUNTY DETENTION 14 CENTER, and THE COUNTY OF 15 SAN JUAN, NEW MEXICO, 16 Defendants-Appellees, 17
and 18 MELISSA DELABARCENA-BEASLEY, 19 Plaintiff-Appellant, 20

v. 21 JIM RUNNELS, CHIEF OF POLICE, 22 FARMINGTON POLICE DEPARTMENT, 23 and THE CITY OF FARMINGTON, 24 NEW MEXICO, 25 Defendants-Appellees. 262 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 1 Robert A. Aragon, District Judge 2

Victor A. Titus 3 Farmington, NM 4 for Appellants 5 Klecan & Childress 6 Ronald J. Childress 7 Elaine R. Dailey 8 Albuquerque, NM 9 for Appellees 10 MEMORANDUM OPINION 11 BUSTAMANTE, Judge. 12 Plaintiffs appeal from an order dismissing their complaint with prejudice. In 13 this Court’s notice of proposed summary disposition, we proposed to affirm. 14 Plaintiffs have timely filed a memorandum in opposition. Defendants Robert Melton, 15 San Juan County Sheriff’s Office, Tom Have l, San Juan County Detention Center, and 16 the County of San Juan have timely filed a memorandum in support. We have 17 considered the parties’ arguments, and as we are not pers uaded by Plaintiffs’ analysis, 18 we affirm. 193 In our notice of proposed summary di sposition, we indicated that although 1 Defendants’ original motion was a motion to dismiss for failure to state a claim, we 2 would review the issue as a motion for summary judgment, since the district court had 3 considered evidence outsi de of the pleadings. See Rule 1-012(B) NMRA (stating that 4 when “matters outside the pl eading are presented to and not excluded by the court, the 5 motion shall be treated as one for summary judgment”); Gulf Ins. Co. v. Cottone , 6 2006-NMCA-150, ¶ 7, 140 N.M. 728, 148 P.3d 814 (stating that an appellate court 7 will treat a district court order as a summary judgment order when matters outside the 8 pleadings are considered on a motion to dismi ss for failure to state a claim). In their 9 memorandum in opposition, Plaintiffs argue that we should review the matter as a 10 motion to dismiss for failure to state a claim, rather than one for summary judgment, 11 because the evidence Plaintiffs submitted wa s only intended to be an example of what 12 the evidence might show if it were to be fu lly developed. [Pls.’ MIO 2] We are not 13 persuaded. Plaintiffs submitted evidence fo r the district court’s consideration and 14 submitted requested findings of fact, and since the evidence was not excluded by the 15 district court, and the district court’s order expressly states that it reviewed the 16 proposed findings and conclusions, we review the motion as one for summary 17 judgment. Summary judgment is warranted if there are no genuine issues of material 184 fact in dispute and the party moving for summary judgment is entitled to judgment as 1 a matter of law. Gulf Ins. Co. , 2006-NMCA-150, ¶ 7. 2 Plaintiffs’ complaint sought injunctive relief and damages based on Defendants’ 3 failure to videotape the interactions be tween police and Plaintiffs during their 4 conversations related to the Informed Consent Act af ter Plaintiffs were arrested for 5 driving under the influence of alcohol. [RP 1- 4] Plaintiffs contended that Defendants 6 were required to videotape these inter actions pursuant to NMSA 1978, § 29-1-16 7 (2005). [RP 2] 8 Section 29-1-16 provides: 9 A. A state or local law enforcement officer shall comply when 10 reasonably able to do so with the following procedures when conducting 11 a custodial interrogation: 12 13 (1) the custodial interrogation shall be electronically 14 recorded in its entirety; 15 16 (2) if conducted in a police station, the custodial 17 interrogation shall be electronically recorded by a method that includes 18 audio or visual or both, if available; and 19 20 (3) the electronic recording shall include the advice of 21 constitutional rights required by law. 22 23 A “custodial interrogation” is define d as “questioning by law enforcement 24 officers that requires the advice of constituti onal rights.” Section 29-1-16(H)(1). The 25 statute provides several exceptions to the videotaping requirement, two of which are 265 relevant here: Section 29-1-16(D) states th at “[t]he provisions of this section shall 1 apply only to custodial interrogations when, at the time of the interrogation, the person 2 is suspected of committing a felony offense,” and Section 29-1-16(G) states that “[t]he 3 provisions of this section do not apply within a correctional facility.” 4 In our notice of proposed summary disposition, we proposed to affirm on three 5 independent grounds: first, because the discussions regarding the giving of breath 6 and/or blood alcohol tests werenot “custodial interrogations” as defined in the statute; 7 second, because there was no evidence that Plaintiffs were suspected of committing 8 a felony; and third, because the conversations took place in a correctional facility. 9 With regards to whether th e conversations constituted “custodial interrogations” 10 under the terms of the statute, in our notice, we pointed out that our Supreme Court 11 has held that the Fifth Amendment is not implicated by a person’s refusal to take a 12 blood or breath alcohol test. See McKay v. Davis , 99 N.M. 29, 31, 653 P.2d 860, 862 13 (1982). In addition, we note that this Court has held that, based on the rationale 14 articulated in McKay and a conclusion that there is no relevant distinction between a 15 blood or breath alcohol test and a field sobriety test, the right against self16 incrimination provided in Article II, Sec tion 15 of the New Mexico Constitution is not 17 implicated by the refusal to take field sobriety tests. See State v. Wright , 116 N.M. 18 832, 835, 867 P.2d 1214, 1217 (Ct. App. 1993). Therefore, Wright indicates that 196 Article II, Section 15 does not require any constitutional warnings prior to discussions 1 regarding breath or blood alcohol tests. 2 However, in response to this Court’ s notice of proposed summary disposition, 3 Plaintiffs argue that it is not the right agains t self-incrimination that is at issue, but a 4 state constitutional right to be given a warni ng that 1) New Mexico law states that by 5 having a driver’s license, a person impliedly c onsents to a test of his or her breath or 6 blood or both if suspected of driving while intoxicated, 2) that if the person refuses 7 such a test, the refusal will be used against the person in court, 3) that a driver has no 8 right to an attorney prior to such testing, and 4) that if a driver refuses a test, it will be 9 used against the driver in court even if th e driver later asks fo r a subsequent test. 10 [Pls.’ MIO 5-6] Plaintiffs point out that although this Court’s notice stated that it did 11 not appear that Plaintiffs had made any specific argument to the district court about 12 any other constitutional rights of which they should have been advised, Plaintiffs did 13 in fact argue that Article II, Sections 4, 14, 15, and 18 all requi re the four suggested 14 warnings. [Pls.’ MIO 3-4; RP 148-49] Weagree that Plaintiffs did raise these 15 arguments in the district court, but we do not agree that they weresufficiently specific 16 to meet the requirements for preservation. 17 First, with respect to Plaintiffs’ claims regarding Article II, Sections 14, 15, and 18 18, each of which has a counterpart in th e federal constitution, Plaintiffs’ arguments 197 were not sufficiently specific to raise a state constitutional claim pursuant to State v. 1 Gomez , 1997-NMSC-006, ¶ 23, 122 N.M . 777, 932 P.2d 1. In Gomez , our Supreme 2 Court held that “when a party asserts a state constitutional right that has not been 3 interpreted differently than its federal analog, a party also must assert in the trial court 4 that the state constitutional provision at issu e should be interprete d more expansively 5 than the federal counterpart and provide reasons for interpreting the state provision 6 differently from the fe deral provision.” Id. As Plaintiffs provided no reasons why 7 these three state constitutional provisions should be interpreted more broadly than 8 their federal analogs, these arguments were not adequately preserved. 9 Furthermore, while we base our decision on our conclusion that Plaintiffs failed 10 to adequately preserve these state constitu tional arguments, we note that Plaintiffs’ 11 argument that Article II, Sections 14, 15, and 18 require the warnings suggested by 12 Plaintiffs has already been rejected inprior case law. As discussed earlier, Wright 13 indicates that Article II, Section 15 does not require any constituti onal warnings prior 14 to discussions regarding breath or blood alcohol tests. See 116 N.M. at 836, 867 P.2d 15 at 1217 (holding that Article II, Section 15 is not implicated by the refusal to take a 16 field sobriety test and stating that there is “no meaningful distinction between 17 evidence of a defendant’s refusal to takea breath-alcohol testand evidence of a 18 refusal to take a field s obriety test”). And in State v. Kanikaynar , 1997-NMCA-036, 198 ¶¶ 3, 11-13, 123 N.M. 283, 939 P.2d 1091, this Court held that the right to due process 1 pursuant to Article II, Section 18, did not require warnings regarding the criminal 2 consequences of a refusal to be tested under the Implied Consen t Act, and held that 3 the right to counsel pursuant to Article II, S ection 14, does not attach at the time of the 4 conversations regarding breath or blood alcohol te sts. Therefore, even if Plaintiffs had 5 adequately preserved their state constitutional arguments, we would find that they are 6 without merit. 7 Plaintiffs’ citation to Article II, Section 4, which provides that “[a]ll persons are 8 born equally free, and have certain natural, inherent and inalienable rights, among 9 which are the rights of enjoying and defending life and liberty, of acquiring, 10 possessing and protecting pr operty, and of seeking and obtaining safety and 11 happiness,” does not have an e quivalent in the federal c onstitution, and therefore the 12 preservation requirements are not th e same as those established in Gomez . However, 13 Plaintiffs’ did not make any particular arguments about the application of the section 14 to this case, and we do not believe that the citation to this secti on, included as part of 15 a shotgun approach citing Gomezand asserting that the state constitution provides 16 broader protection than the federal constitu tion was sufficient to invoke an intelligent 17 ruling from the district court on the application of this section—particularly where this 18 section does not even havea federal counterpart. See Woolwine v. Furr’s, Inc. , 106 199 N.M. 492, 496, 745 P.2d 717, 721 (C t. App. 1987) (“To preserve an issue for review 1 on appeal, it must appear that appellant fairly invoked a ruling of the trial court on the 2 same grounds argued in the appellate court. ”). Even if Plaintiffs’ argument was 3 sufficient to preserve their claim, in this Court, their claim thatthis section requires 4 the warnings they propose is entirely unsupported by any authority or argument in 5 their docketing statement or their memo randum in opposition, and we would reject 6 their claim on that basis. See In re Adoption of Doe , 100 N.M. 764, 765, 676 P.2d 7 1329, 1330 (1984) (stating that when a party cites no authority to support an 8 argument, we can assume that none exists); Headley v. Morgan Mgmt. Corp. , 9 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (stating that this Court does not 10 review arguments that are not adequately de veloped). Therefore, we conclude that as 11 Plaintiffs’ arguments have not persuaded this Court that their proposed warnings were 12 required under either the state or federal cons titution, we hold that videotaping of their 13 conversations was not required since these conversations were not “custodial 14 interrogations” as that term is used in the statute. 15 Furthermore, as we stated in our notice of proposed summary disposition, in 16 this case, both Plaintiffs were under su spicion of driving while intoxicated, in 17 violation of NMSA 1978, § 66-8-102 (2008). Under this statute, driving while 18 intoxicated is not a felony unless a person ha s three prior convictions for driving while 1910 intoxicated. See § 66-8-102(G). Plaintiffs in this case provided no evidence that they 1 were suspected of having at least three prior convictions for DWI at the time they 2 were questioned about whether they would consent to a blood or breath alcohol test. 3 Instead, Plaintiffs argued to the district c ourt, and continue to argue on appeal, that 4

everyonearrested for DWI should be suspected of committing a felony offense, 5 simply because it is a possibility. [RP 91- 92; MIO 7-8] We cannot agree that the 6 police should suspect everyone of having previous convictions for DWI based solely 7 on the fact that it is possible that someone could have been previously convicted. It 8 is clear that such a suspicion would be ne ither particularized nor reasonable. Where, 9 as here, Plaintiffs presented no evidence th at they were suspected of committing a 10 felony, we hold that Section 29-1-16 did not require videotaping of Plaintiffs’ 11 interactions with the police. See § 29-1-16(D). 12 As a third alternative ground for affirmance, we note that each of the Plaintiffs’ 13 interactions regarding the breath and blood alcohol tests took place in a correctional 14 facility. [RP 100, 111] Interrogations “with in a correctional facility” are expressly 15 excepted from the statute. See § 29-1-16(G). Plaintiffs argue that this provision 16 should not apply because Plai ntiffs were not “booked into ” any detention facility at 17 the time of the conversations—they were mere ly present in a detention facility. [Pls.’ 18 MIO 8] As we find nothing in the statute that would support Plaintiffs’ distinction 1911 between those who are “booked into” a dete ntion facility and those who are not, and 1 as Plaintiffs do not provide any argument th at there is some public policy reason that 2 would indicate that the legislature intended to make this distinction, we adhere to the 3 plain meaning of the statute and conclude videotaping was not required since 4 Plaintiffs were both questioned within a correctional facility. 5 Therefore, for the reasons stated in this opinion and the notice of proposed 6 summary disposition, we affirm. 7 IT IS SO ORDERED. 8

9 MICHAEL D. BUSTAMANTE, Judge 10 WE CONCUR: 11

12 CYNTHIA A. FRY, Chief Judge 13

14 LINDA M. VANZI, Judge 15