State v. McGinn, 932 N.W.2d 83, 303 Neb. 931 (2019)

Aug. 23, 2019 · Nebraska Supreme Court · No. S-18-744.
932 N.W.2d 83, 303 Neb. 931
STATE of Nebraska, appellee, v. Danny J. MCGINN, appellant.

STATE of Nebraska, appellee,
v.
Danny J. MCGINN, appellant.

No. S-18-744.

Supreme Court of Nebraska.

Filed August 23, 2019

Forrest F. Peetz, of Peetz Law, P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss, Lincoln, for appellee.

Heavican, C.J., Miller -Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

SUPPLEMENTAL OPINION

Per Curiam.

**931This 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:

**932In this matter, because we consider all evidence admitted 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.