State v. McGinn - supplemental opinion , 303 Neb. 931 ( 2019 )

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09/20/2019 08:06 AM CDT
- 931 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. McGINN
Cite as 303 Neb. 931
State of Nebraska, appellee, v.
Danny J. McGinn, appellant.
___ N.W.2d ___
Filed August 23, 2019. No. S‑18‑744.
supplemental opinion
Appeal from the District Court for Holt County, Mark D.
Kozisek, Judge, on appeal thereto from the County Court for
Holt County, Kale B. Burdick, Judge. Former opinion modi-
fied. Motion for rehearing overruled.
Forrest F. Peetz, of Peetz Law, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss,
for appellee.
Heavican, C.J., Miller‑Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Per Curiam.
This case is before us on a motion for rehearing filed by the
appellee, State of Nebraska, concerning our opinion in State v.
McGinn.1 We overrule the motion, but we modify the opinion
as follows:
In the analysis section, we withdraw the last paragraph2 and
substitute the following:
1
State v. McGinn, ante p. 224, 928 N.W.2d 391 (2019).
2
Id. at 234, 928 N.W.2d at 398.
- 932 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. McGINN
Cite as 303 Neb. 931
In this matter, because we consider all evidence admit-
ted by the trial court, erroneously or not, we consider the
breath test in our double jeopardy analysis. Considering
the breath test, the evidence was sufficient to sustain
a guilty verdict for a violation of § 60‑6,196(1)(c) as
charged. As such, double jeopardy does not forbid a
remand for a new trial. Therefore, in consideration of
all of the above, we reverse the district court’s decision
affirming the county court’s conviction and remand the
cause to the district court with directions to remand the
matter to the county court for a new trial.
In the sole paragraph of the conclusion section, we withdraw
the last sentence3 and substitute the following: “Accordingly,
we reverse the district court’s decision affirming the county
court’s conviction, but determine double jeopardy does not
require dismissal of this action.”
The remainder of the opinion shall remain unmodified.
Former opinion modified.
Motion for rehearing overruled.
3
Id.