This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Paul Richard Wingo,


Commissioner of Public Safety,



Filed March 27, 2001

Klaphake, Judge

Foley, Judge,* concurring specially


Hennepin County District Court

File No. 478772



Douglas Voigt Hazelton, 600 South Highway 169, Suite 817, Minneapolis, MN  55426 (for appellant)


Mike Hatch, Attorney General, Jeffrey F. Lebowski, Michael R. Pahl, Assistant Attorneys General, 525 Park Street, Suite 500, St. Paul, MN  55103 (for respondent)


            Considered and decided by Toussaint, Chief Judge, Klaphake, Judge, and Foley, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Paul Wingo challenges the district court’s order sustaining the revocation of his driver’s license.  He contends that respondent Commissioner of Public Safety did not approve the instrument used in testing pursuant to the Administrative Procedures Act (APA), Minn. Stat. § 14.001-.69 (1998), and Minn. Stat § 169.128 (1998).  Although the commissioner did not approve the Intoxilyzer 5000, Series 68 and 68-01 and related software, through formal rulemaking, because the record is devoid of evidence demonstrating significant changes in the instrument, we affirm.


            Minnesota law requires revocation of driving privileges if the results of chemical testing show a driver has an alcohol concentration of 0.10 or more.  Minn. Stat. § 169.123, subd. 4(b) (1998).  A chemical test may be performed on the driver’s blood, breath, or urine.  Minn. Stat. § 169.123, subd. 2(a) (1998).  A breath test may be performed by using an infrared breath-testing instrument following a statutorily-prescribed procedure.  Minn. Stat. § 169.123, subd. 2b(a) (1998).  An “infrared breath-testing instrument” is defined as “a breath-testing instrument that employs infrared technology and has been approved by the commissioner of public safety for determining alcohol concentration.”  Minn. Stat. § 169.01, subd. 68 (1998) (emphasis added).  The test results from such an instrument are admissible into evidence “without antecedent expert testimony that an infrared breath-testing instrument provides a trustworthy and reliable measure of the alcohol in the breath."  Minn. Stat. § 634.16 (1998).

            The commissioner approved the use of the Intoxilyzer 5000 by rule in 1984.  8 Minn. Reg. 2186, 2187 (Apr. 2, 1984).  The rule provides:

The Intoxilyzer 5000 instrument, which uses infrared technology, is approved for use in this state for purposes of determining the alcohol concentration of a breath sample.


Minn. R. 7502.0420, subp. 2 (1999).  By Orders 101 and 101a, the commissioner approved the use of the Intoxilyzer 5000, Series 68, and subsequent models of the Series 68.  Minnesota Dep’t of Pub. Safety, Commissioner’s Order Nos. 101 (May 1, 1997); 101a (May 8, 1998).  In 1999, the commissioner, by Order 101b, approved software changes to the Intoxilyzer 5000, Series 68 models. Minnesota Dep’t of Pub. Safety, Commissioner’s Order No. 101b (Sept. 24, 1999).

            On May 24, 2000, appellant was arrested for driving while under the influence of alcohol.  After an officer read the implied consent advisory, appellant agreed to take a breath test.  The test, performed on an Intoxilyzer 5000, Series 68-01, showed an alcohol concentration of .13, and appellant’s driving privileges were revoked.

            At issue here is whether the commissioner’s approval of changes to the instrument could occur through internal order rather than through formal rulemaking under the APA.  Appellant claims that if the commissioner wishes to approve modified versions of the Intoxilyzer 5000, it must be done through formal rulemaking as required by Minn. Stat. § 169.128, rather than by internal order.

            The commissioner contends that he was not required to approve the changes to the Intoxilyzer 5000 through formal rulemaking.  First, he argues that the word “may” in Minn. Stat. § 169.128 gives the commissioner discretion to promulgate rules.  We do not agree with the commissioner that the word “may” means that the agency can use either a rule or some other method for its approval.  Instead, we read “may” as simply the legislative authority to engage in rulemaking as required by Minn. Stat. § 14.05, subd. 1, which reads “[e]ach agency shall adopt, amend, suspend, or repeal its rules in accordance with the procedures specified in 14.001 to 14.69, and only pursuant to authority delegated by law.”

            When authorized, chapter 14 requires an agency to promulgate a rule through formal rulemaking.  Under Minn. Stat. § 14.02, “rule” is defined as

every agency statement of general applicability and future effect, including amendments, suspensions, and repeals of rules, adopted to implement or make specific the law enforced or administered by that agency or to govern its organization or procedure.


Minn. Stat. § 14.02, subp. 4 (1998) (emphasis added).  Minn. Stat. § 14.06(a) provides that when an agency’s “procedures directly affect the rights of or procedures available to the public,” the agency shall adopt rules.  In re Leisure Hills, 518 N.W.2d 71, 74-75 (Minn. App. 1994) (addressing whether procedures were internal ones not affecting public rights, and therefore not subject to formal rulemaking of APA), review denied (Minn.  Sept. 16, 1994).

            Second, the commissioner argues that his orders fall within an exception to the APA rulemaking requirement.  An exception to the definition of a rule in section 14.02, subd. 4 arises if the provision involves “only the internal management of the agency * * * that do not affect the rights of or procedures available to the public,” Minn. Stat. § 14.03, subd. 3(a)(1) (1998).  The commissioner contends the decision as to which instrument to purchase falls within this exception. 

            We disagree.  Test results from an approved instrument are admissible in evidence without expert testimony on the reliability and trustworthiness of the infrared breath testing instruments.  Minn. Stat. §§ 634.16; 169.01, subd. 68.  Further, either test results or a refusal to take a test from an approved machine form the basis for revocation of driving privileges under Minn. Stat. § 169.123, subd. 4.  Under these circumstances, approval of the instrument is not just internal management; it affects the rights and procedures available on a daily basis to law enforcement officers, the motoring public, and the courts.  Consequently, the commissioner’s approval of infrared testing equipment is a rule by definition, and the commissioner must follow the APA.  The purpose of the APA is to protect the public and to provide a system of checks and balances, which includes increasing (1) public accountability of agencies; (2) public access to governmental information; and (3) public participation of the formation of new rules.  Minn. Stat. § 14.001, subds. 2, 4, 5 (1998).

            Third, the commissioner argues that this court should defer to an agency’s interpretation of its statutes and rules.  See Cable Communications Bd. v. Nor-West Cable Communications Partnership, 356 N.W.2d 658, 667 (Minn. 1984).  He contends that the department of public safety has interpreted the term “Intoxilyzer 5000” in Minn. R. 7502.0420, subp. 2, to include the Intoxilyzer 5000, Series 68, and related software, noting both use infrared spectrometry to analyze the breath sample.  While we do not agree that the commissioner can avoid the rulemaking process indefinitely by issuing orders, in this instance there is no evidence in the record suggesting that the changes to the instrument and software were material alterations.  See Schuster v. Commissioner of Pub. Safety, ___ N.W.2d ___(Minn. App. Mar. 13, 2001).

            Because the record is silent as to the materiality of alteration to the Intoxilyzer 5000, Series 68,and its software, we defer to the commissioner’s construction of its rule and affirm the revocation of appellant’s driver’s license.


FOLEY, Judge (concurring specially)

            I concur in the result.

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