IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2024 ND 8

Daynen Keith Hoover, Appellant

v.

Director, North Dakota Department of Transportation, Appellee

No. 20230226

Appeal from the District Court of Ward County, North Central Judicial 

District, the Honorable Gary H. Lee, Judge.

REVERSED.

Opinion of the Court by Bahr, Justice.

Daynen K. Hoover, self-represented, Minot, ND, appellant; submitted on brief.

Michael T. Pitcher, Assistant Attorney General, Bismarck, ND, for appellee; 

submitted on brief.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

JANUARY 22, 2024 

STATE OF NORTH DAKOTA
1

Hoover v. NDDOT

No. 20230226

Bahr, Justice.

[¶1] Daynen Hoover appeals a district court judgment affirming a North 

Dakota Department of Transportation (“Department”) hearing officer’s 

decision suspending Hoover’s driving privileges for 91 days. We conclude the 

procedure used by the Department—admitting exhibits into evidence without 

permitting Hoover a meaningful opportunity to examine them—did not 

provide Hoover a fair hearing. We reverse the district court’s judgment.

I

[¶2] A law enforcement officer arrested Hoover on March 18, 2023 for being 

in actual physical control of a motor vehicle while under the influence of 

alcohol. A breath test indicated Hoover’s blood alcohol concentration to be .085

percent by weight.

[¶3] Hoover requested an administrative hearing and consented to the 

Department holding the hearing by video conference call. The Department sent 

Hoover a notice of administrative hearing, video conference attendee 

instructions, a notice of information, and an exhibit. The notice of information 

stated, “Exhibit 1 contains regularly kept records of the NDDOT Director that 

will be offered into evidence regarding the issues to be determined at the 

hearing.” It then provided:

Regularly kept records received by NDDOT from the State Crime 

Laboratory may be offered as foundational evidence concerning 

testing for alcohol concentration. Copies of these documents can be 

inspected during business hours, by prior appointment, at the 

NDDOT central office in Bismarck, at NDDOT district offices in 

Fargo, Grand Forks, Devils Lake or at the office of the county 

recorder or other official designated by the county commissioners. 

Documents from the State Crime Laboratory can be found at 

http://www.ag.nd.gov/CrimeLab/Lab.htm.
2

[¶4] The Department held the hearing on April 10, 2023. At the hearing,

when the hearing officer offered eight foundational exhibits purportedly from 

the State Crime Laboratory, Hoover objected. The following exchange occurred:

MR. MICHAEL HOFFMAN: Yes, I will object to all of them. I mean 

my client and I don’t have copies of those exhibits in front of us at 

this hearing. Yeah, that’s my objection. We aren’t . . . we are not 

able to see them or look at them or analyze them.

MR. HALBACH: Yeah, the objections are overruled. It was agreed 

to have the hearing by video. Exhibit 3 indicates that they can be 

retrieved from the state crime lab’s website. And Exhibits 4, 5, 6, 

7, 8, 9, both 13s, and all 15s are admitted. 

Also offered at this time are the hearing notices. Exhibit 2, 

the Notice of Hearing with a copy of the email being sent . . . or a 

copy of the email with the video conference attendee instructions, 

and Exhibit 3 the Notice of the Information sent out with a copy of 

the email sending them electronically. Any objections to Exhibits 2 

or 3?

MR. HOFFMAN: On Exhibit 3 there is not identified the exhibits 

that are going to be used at today’s hearing even though Exhibits 

4, 5, 6, 7, 8, 9, 13, and 15 may be a part of the . . . what’s that, the 

crime lab or part of the AG’s website, they are not identified. So I’ll 

object again to those exhibits and the . . . 

MR. HALBACH: I already ruled on the objection to those exhibits. 

So the question is Exhibits 2 and 3.

MR. HOFFMAN: Well I object to Exhibit 3. It doesn’t identify these 

exhibits that we’ve talked about. It’s an improper notice, 

insufficient notice. 

MR. HALBACH: The objection is overruled. Exhibit 3 also says you 

can make appointment to have them reviewed. Exhibits 2 and 3 

are also admitted.
3

Over Hoover’s objection, the hearing officer admitted the foundational exhibits. 

The exhibits provided foundation for the chemical breath test. Following the 

hearing, the Department suspended Hoover’s driving privileges for 91 days.

[¶5] Hoover appealed to the district court. The court affirmed the hearing 

officer’s decision.

II

A

[¶6] “The Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, governs 

our review of an administrative decision to suspend or revoke a driver’s 

license.” Schock v. N.D. Dep’t of Transp., 2012 ND 77, ¶ 11, 815 N.W.2d 255. In 

reviewing an administrative decision, “[w]e review the Department’s original 

decision, giving deference to its findings of fact and reviewing its legal 

conclusions de novo.” Goff v. Panos, 2022 ND 186, ¶ 6, 981 N.W.2d 909. This 

Court must affirm the Department’s decision unless it determines a statutory 

ground for reversal is present. N.D.C.C. § 28-32-46; N.D.C.C. § 28-32-49 (“The 

judgment of the district court in an appeal from an order . . . of an 

administrative agency or the commission may be reviewed in the supreme 

court on appeal in the same manner as provided in section 28-32-46[.]”). One 

ground for reversal is if the agency’s procedure did not afford the appellant a 

fair hearing. N.D.C.C. § 28-32-46(4).

[¶7] Affording a party a fair hearing includes the agency conducting the 

hearing according to the due process and fair hearing “ground rules” set out in 

the Administrative Agencies Practice Act (“AAPA”), N.D.C.C. ch. 28-32. S & S

Landscaping Co. v. N.D. Workers’ Comp. Bur., 541 N.W.2d 80, 83 (N.D. 1995). 

The AAPA also “requires an administrative hearing officer to conduct hearings 

in conformity with ‘any other applicable laws.’” Landsiedel v. Dir., N.D. Dep’t

of Transp., 2009 ND 196, ¶ 9, 774 N.W.2d 645 (quoting N.D.C.C. § 28-32-35).

B

[¶8] Hoover acknowledges the eight exhibits, “if they accurately reflect 

regularly kept records of the state crime laboratory,” were admissible under 
4

N.D.C.C. § 39-20-05(4). He argues, however, that he was denied a fair hearing 

because the hearing officer never provided to him “prior to the hearing, or at 

the hearing, copies of the exhibits for [his] review or analysis” so he could 

determine if the exhibits complied with N.D.C.C. § 39-20-05(4). Because he 

“could not view the actual exhibits marshalled by [the] Hearing Officer,” 

Hoover asserts he could not determine “at the hearing whether the exhibits 

were still relevant or instead out-of-date, overruled or modified in any fashion 

so as to make any proper objections.”

[¶9] The Department argues Hoover was not denied a fair hearing because 

he “was advised of how he could either view or obtain those exhibits prior to 

the administrative hearing he requested be held via video conference.” 

According to the Department, the eight exhibits “were made available to 

Hoover for inspection prior to the hearing, either by viewing them at the 

attorney general’s website or by inspection at the DOT central office in 

Bismarck or at district offices, or by appointment, or online at the crime lab’s 

website.”

[¶10] A hearing under N.D.C.C. § 39-20-05 “may be conducted in whole or in 

part by telephone, television, virtual online interface, or other electronic means 

with the consent of the licensee.” N.D.C.C. § 39-20-05(7). The AAPA also 

permits hearing officers to conduct hearings by electronic means. N.D.C.C. §

28-32-35. However, the electronic means must provide the participants “an 

opportunity to participate in, to hear, and, if practicable, to see the entire 

proceeding while it is taking place[.]” Id. Moreover, the electronic means may 

not “substantially prejudice or infringe on the rights and interests of any 

party.” Id.

[¶11] Generally, judicial officers and quasi-judicial officers do not admit an

exhibit into evidence until the opposing party has the opportunity to view the 

exhibit. See N.D. Admin. Code § 98-02-03-06 (providing “all parties must be 
5

afforded an opportunity to examine the exhibit”)

1; Roger C. Park & Aviva 

Orenstein, Trial Objections Handbook 2d § 9:18(2) (Updated 2023) (“Show the 

document to the opponent. If the document is known to the opponent through 

discovery or otherwise, the proponent can simply ask whether the opponent 

wants to see the document.”); Fred Lane, 2 Lane Goldstein Trial Technique § 

12:11 (3d ed.) (Updated 2023) (“After the exhibit has been marked for 

identification and before it is given to the witness for the purpose of laying the 

foundation it may be shown to opposing counsel.”). An opposing party’s 

opportunity to view the exhibit allows the party to examine the exhibit and 

make objection before the judicial officer or quasi-judicial officer admits the 

exhibit and permits the fact finder to consider it. Cf. Bank of Am., N.A. v. 

Greenleaf, 96 A.3d 700, 710 n.15 (Me. 2014) (quoting State v. Saulle, 414 A.2d 

897, 899 (Me. 1980)) (“[W]e cannot overemphasize the necessity that nothing 

be exhibited to the [factfinder] until it has first been marked for identification, 

properly identified, shown to opposing counsel and received in evidence.”).

[¶12] A party’s ability to examine exhibits introduced against the party is an 

important procedural protection in an adjudicative proceeding. With minimal 

planning, it is generally practicable to arrange electronic proceedings so 

participants can view the exhibits. Cf. N.D. Sup. Ct. Admin. R. 52(2)(g) (“A 

method for electronic transmission of documents must be available at each site 

where reliable electronic means are used in a court proceeding for use in 

conjunction with the proceeding.”). Here, the procedure used by the 

Department did not permit Hoover to see the exhibits before the hearing officer 

admitted them. This precluded Hoover from examining the exhibits to 

determine whether there were grounds to object to their admissibility.

1 The parties did not brief, and we do not address, whether the Department is required to use the 

uniform rules adopted under N.D.C.C. § 54-57-05. Compare N.D.C.C. § 54-57-03(1) (exempting the 

Department from the requirement that its adjudicative proceedings “be conducted by the office of 

administrative hearings in accordance with the adjudicative proceedings provisions of chapter 28-32 

and any rules adopted pursuant to chapter 28-32”) with N.D.C.C. § 54-57-05 (providing the uniform 

rules “must be used by all administrative agencies subject to chapter 28-32 which do not have their 

own rules of administrative hearings practice or procedure governing the course and conduct of 

hearings”).
6

[¶13] Contrary to its argument, the Department’s notice of information did not 

provide Hoover a meaningful opportunity to examine the exhibits before the 

hearing officer admitted them. The notice of information did not provide copies 

of the exhibits. It also did not specifically identify the documents maintained 

by the Department or on the attorney general’s website that the Department 

planned to introduce at the hearing. Rather, the notice of information 

referenced “regularly kept records” received by the Department “from the State 

Crime Laboratory.” It further stated, without specifically identifying any 

particular document, that Hoover could find “Documents from the State Crime 

Laboratory” on the attorney general’s website.

[¶14] At no place did the notice of information identify the specific State Crime 

Laboratory documents the Department intended to offer into evidence. Thus, 

Hoover had to guess which State Crime Laboratory documents regularly kept 

by the Department or kept on the attorney general’s website the Department 

may introduce as exhibits. Moreover, even if Hoover reviewed all State Crime 

Laboratory documents regularly kept by the Department, or kept on the 

attorney general’s website, the Department’s procedure did not provide Hoover 

the ability to confirm the exhibits offered (but not shown by the hearing officer

at the hearing), were the same documents as, or in the same form as, the State 

Crime Laboratory documents maintained by the Department or on the 

attorney general’s website.

[¶15] Our decision in State v. Rolfson, 2018 ND 51, 907 N.W.2d 780, supports 

the conclusion the Department’s general identification of State Crime 

Laboratory documents is insufficient notice of the exhibits the Department 

intended to offer at the hearing. In Rolfson, the State responded to Rolfson’s 

discovery request by sending an “email listing exhibits and including an 

electronic link to documents from the Attorney General’s website the State 

intended to use as foundation exhibits for admission of Rolfson’s Intoxilyzer 

test result.” Id. at ¶ 2. At trial, the State printed three additional foundational 

documents to enter into evidence. Id. at ¶ 4. Rolfson objected, arguing “the 

State violated discovery by not providing the three documents in advance of 

trial.” Id. “The State responded that because the three additional documents 

were publicly available, they were not required to be provided in its discovery 
7

response[.]” Id. The district court admitted the three additional foundation 

documents into evidence. Id.

[¶16] On appeal, we cited State v. Packineau, 2015 ND 180, ¶ 13, 865 N.W.2d 

414, for the proposition the State could disclose the documents through a stateowned website address. Rolfson, 2018 ND 51, ¶ 8. We held, however, that the 

discovery rule “was violated because the State neither provided paper copies 

nor provided specific identification of the three challenged foundation 

documents on the Attorney General’s website.” Id. at ¶ 9 (emphasis added). 

Although this case involves an adjudicative proceeding under N.D.C.C. ch. 28-

32, not discovery under N.D.R.Crim.P. 16, the fundamental principal that a 

party must identify specific documents, not simply regularly kept records or a 

collection of documents at a website address, applies.

[¶17] The record does not reflect the number of State Crime Laboratory 

documents maintained by the Department or on the attorney general’s website 

on the date the Department sent the notice of information to Hoover.

2 It also 

does not indicate how often the Department or the State Crime Laboratory 

modifies, replaces, removes, or adds documents. Finally, the record does not 

indicate how the Department or the website identifies the documents, such as 

by a form number and date, so a party can confirm a document introduced at 

a hearing is the same document examined at a Department location or on the 

attorney general’s website. Absent this information, we cannot conclude 

Hoover was able to examine the specific documents prior to the hearing. We

also cannot conclude Hoover was able to confirm the exhibits referenced, but 

not shown, by the hearing officer were the same documents maintained by the 

Department or on the attorney general’s website.

[¶18] The Department’s procedures did not comply with N.D.C.C. § 28-32-35,

and substantially prejudiced or infringed on Hoover’s procedural rights. Based 

on the record before us, we conclude the procedure used by the Department did 

not afford Hoover a fair hearing because Hoover did not have a meaningful 

2 The link provided in the notice of information was nonfunctional when this opinion was signed.
8

opportunity to examine the exhibits before the hearing officer received them 

as evidence.

III

[¶19] Having considered the parties’ remaining arguments, we conclude they 

are unnecessary to our decision or are without merit. We reverse the district 

court’s judgment affirming the Department’s decision to suspend Hoover’s 

driving privileges for 91 days.

[¶20] Jon J. Jensen, C.J.

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte

Douglas A. Bahr