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10/04/2019 12:07 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.
