1A Smart Start, Inc., et al., Petitioners,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0040

1A Smart Start, Inc., et al.,
Petitioners,

vs.

Minnesota Department of Public Safety, et al.,
Respondents.

Filed August 20, 2018
Rules declared valid
Smith, John, Judge*

Minnesota Department of Public Safety

Jack Y. Perry, Jason R. Asmus, Briggs and Morgan, P.A., Minneapolis, Minnesota (for
petitioners)

Lori Swanson, Attorney General, Stephen D. Melchionne, Assistant Attorney General,
St. Paul, Minnesota (for respondents)

Considered and decided by Halbrooks, Presiding Judge; Rodenberg, Judge; and
Smith, John, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
SMITH, JOHN, Judge
We declare valid the performance standards contained in the 2016 certification
guidelines of the Minnesota Department of Public Safety because the performance
standards are not prohibited by the plain language of Minn. Stat. § 171.306 (Supp. 2017).
FACTS
Petitioners 1A Smart Start, Inc., et al. , manufacture and market ignition-interlock
devices. These devices are “ designed to measure breath alcohol concentration and to
prevent a motor vehicle ’s ignition from being started by a person whose breath alcohol
concentration measures 0.02 or higher.” Minn. Stat. § 171.306, subd. 1(b). They are part
of a program providing certain offenders an opportunity to safely regain driving privileges.
See id., subds. 3, 4. The devices are installed with a camera to photograph the driver when
he or she submits a breath sample.
The commissioner of public safety is tasked with establishing “ performance
standards and a process for certifying” ignition-interlock devices. Id., subd. 2(a); see also
Minn. Stat. § 171.01, subd. 28 (2016 ) (defining “commissioner” to include authorized
agents). Manufacturers must seek annual certification for a device. Minn. Stat. § 171.306,
subd. 2(b). According to petitioners, there are five manufacturers and providers of certified
devices in Minnesota.
The department of public safety (DPS), through its driver and vehicle services
(DVS) division, periodically publish es the performance standards and cert ification
guidelines for device manufacturers. The 2016 certification guidelines contain “real-time

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reporting” performance standards. “Real-time” is defined in the guidelines as the “instant
transmission of ignition interlock data, including photos, to the manufacturer’s website for
viewing by DVS without delay as cellular reception permits.” Essentially, real-time
reporting allows for instant notification if an ignition -interlock-device user fails a test or
fails to co mply with testing. Violations were previously reported , at least in part, via
monthly downloads. Under the real-time performance standards:
a. There shall be constant communication between the
manufacturer’s server and relay unit while the device is in use.
All data, including photos, shall be available for viewing on the
website within 5 minutes from when the data was recorded on
the device. This includes any last event data recorded after
power off (e.g., skipped 10-minute rolling retest window data).

b. [Devices] [s]hall have the capability to periodically
awaken . . . for data retrieval when not in use.

c. The date of the last upload shall be noted on the
participant’s web account.

d. A reliable cellular company shall be used as well as a
cellular contract that includes roaming charges. In cases where
there is no cellular reception, the device shall store the data and
send it as soon as cellular reception is available.

e. If a participant’s device has not transmitted data after 5
days, the manu facturer shall contact the participant to
determine why data is not being transmitted. If the data cannot
be transmitted after 10 days, the manufacturer shall contact the
Department . . . to indicate why the data is not being
transmitted.

In this declaratory-judgment ac tion under Minn. Stat. section 14.44 (2016),
petitioners challenge the real -time performance standards contained in the 2016
certification guidelines. Petitioners assert that the performance standards conflict with

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2017 statutory amendments that prohibit DPS from establishing performance standards that
require ignition-interlock devices “to use or enable location tracking capabilities without a
court order.”1 Minn. Stat. § 171.306, subd. 2(a); see 2017 Minn. Laws ch. 83, art. 1, §§ 1-
3, at 351 -53. Petitioners argue that the real -time performance standards in the 2016
certification guidelines require such location tracking capabilities, and therefore violate
section 171.306, subdivision 2(a).
D E C I S I O N
This court has original jurisdiction over preenforcement challenges to the va lidity
of administrative rules. Minn. Stat. § 14.44; Coal. of Greater Minn. Cities v. Minn.
Pollution Control Agency, 765 N.W.2d 159, 163 (Minn. App. 2009), review denied (Minn.
Aug. 11, 2009). A preenforcement challenge “questions the process by which the rule was
made and the rule ’s general validity before it is enforced against any particular party.”
Coal. of Greater Minn. Cities, 765 N.W.2d at 164 (quotation omitted). We may declare a
rule invalid if it violates the constitution, is in excess of statutory authority of the adopting
agency, or was adopted without compliance with rulem aking procedures. Minn. Stat.
§ 14.45 (2016).
Petitioners solely assert that the real -time performance standards exceed DP S’s
statutory authority because the standards are prohibited by Minn. Stat. § 171.306 .

1 Under the amendments, “[t] he manufacturer of a certified device must include with an
ignition interlock device contract a separate notice to the program participant regarding any
location tracking capabilities of the device.” Minn. St at. § 171.306, subd. 2(c) . And, the
commissioner shall not permit location tracking devices to be enabled unless ordered to do
so by a court. Id., subd. 3(g).

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Appellate courts “apply the de novo standard of review to the question of whether the
[agency] has exceeded its statutory authority” and “resolve any doubt about the ex istence
of an agency’s authority against the exercise of such authority.” In re Application of Minn.
Power, 838 N.W.2d 747, 753 (Minn. 2013) (quotation omitted). While administrative
agencies have the authority to implement the language of a statute, an agency cannot adopt
a conflicting rule. GH Holdings, LLC v. Minn. Dep’t of Commerce, 840 N.W.2d 838, 842
(Minn. App. 2013).
We first examine the plain language of both Minn. Stat. § 171.306 and the real-time
performance standards to determine whether a conflict exists. We will look beyond the
plain language of a statutory or regulatory provision only if the text is ambiguous. Kratzer
v. Welsh Cos., 771 N.W.2d 14, 21 (Minn. 2009). “Ambiguous text is susceptible to more
than one reasonable meaning.” Id.
Section 171.306, subdivision 2(a), prohibits DPS from establishing any
performance standards “that, directly or indirectly, require [ignition -interlock] devices to
use or enable location tracking capabi lities without a court order.” The term “locati on
tracking capabilities” is defined as “the ability of an electronic or wireless device to identify
and transmit its geographic location through the operation of the device.” Minn. Stat.
§ 171.306, subd. 1(c).
The real-time performance standards do not expressly require lo cation tracking
capabilities. That is, t he standards make no reference to geolocation capabilities or the
retention of location data . Though the real -time performance standards refer to the

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transmission of “data ,” nothing in the guidelines indicates that geog raphic location is
amongst the data to be gathered and transmitted.
The issue then is whether the real -time performance standards indirectly require
ignition-interlock devices to use or enable location tracking capabilities without a court
order. In th is vein, p etitioners assert that the real -time performance standards require
devices to be equipped with, at a minimum, cellular capabilities.2 Petitioners argue that
cellular communication necessarily generates cell-site location information (CSLI). CSLI
involves multiple wireless towers receiving a wireless signal, allowing the location of that
signal to be triangulated. Petitioners assert that section 171.306 prohibits devices that
generate CSLI because such devices have location tracking capabilities . Petitioners’
argument is unavailing for two reasons.
First, the term location tracking capabilities is defined as “the ability of an electronic
or wireless device to identify and transmit its geographic location through the operation of
the device .” Id. (emphasis added) . Regarding CSLI, a s petitioners concede, it is the
information stored in wireless towers that is used to “analyze the device’s position,” and it
is the wireless tower data which “can then be used to triangulate the location” of the device.
Therefore, it is not the devices that are identifying geographic location, but rather
mechanisms outside the devices using data likewise contained outside the devices. This

2 Petitioners appear to both argue that the real -time performance standards effectively
require ignition-interlock devices to use global-positioning-system (GPS) technology, and
concede that devices can meet the standards using only cellular technology. These
positions are seemingly contradictory. At any rate, n othing in the plain language of the
real-time standards requires GPS capabilities. There is no mention of GPS capabilities in
the real-time standards.

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type of geolocation falls outside the restrictions imposed under the plain language of Minn.
Stat. § 171.306, subd. 1(c).
Second, although the real-time performance standards may require devices to create
CSLI, there is nothing in the record, or in the real-time standards, indicating that this CSLI
will enable location tracking “without a court order. ” Id., subd. 2 (a). Minnesota has
enacted restrictions on the government’s ability to obtain electronic -device location
information without a warrant. See Minn. Stat. § 626A.42 (2016). Further, i n Carpenter
v. United States, the Supreme Court recently held that “an individual maintains a legitimate
expectation of privacy in the record of his physical movements as captured through CSLI,”
and the government’s acquisition of CSLI maintained by third-party providers constitutes
a search under the Fourth Amendment. 138 S. Ct. 2206, 2217 (2018). The real -time
performance standards do not even reference CSLI, let alone enable access to that
information without a court order.
In a preenforcement action, we do not engage in broad and far-reaching scrutiny of
a rule based on hypothetical facts, rather we simply determine if a rule is facially valid.
Manufactured Hous . Inst. v. Pettersen , 347 N.W.2d 238, 241 (Minn. 1984) . The plain
language of section 171.306 does not prohibit the real-time performance standards. The
real-time performance standards do not require ignition -interlock devices to have the
capability to identify and transmit location. Further, though the performance standards
may require CSLI to be generated, they do not enable location tracking via CSLI without
a court order. We therefore declare the real-time performance standards to be valid rules.
Rules declared valid.