State of Nebraska v. Danny J. McGinn

Summary

The Nebraska Supreme Court reviewed Danny J. McGinn’s conviction for second-offense driving under the influence. The court held that the breath-test evidence was inadmissible and that the remaining evidence was insufficient to prove the offense as charged under Neb. Rev. Stat. § 60-6,196(1)(c). Because double jeopardy barred a retrial, the court reversed the district court and remanded with directions to dismiss the action.

Holdings

1. The State did not preserve a challenge to the district court's inadmissibility determination because it did not appeal or cross-appeal that ruling and did not assign it as error.
2. An appellee's request to uphold a lower court decision on grounds specifically rejected below constitutes a request for affirmative relief, which requires a cross-appeal.
3. The remaining evidence was insufficient to sustain McGinn's conviction because the complaint, as construed by the State's concession, charged a violation based on a breath-alcohol concentration under section 60-6,196(1)(c), and no competent evidence established that element after the breath test was excluded.
4. Because the evidence was insufficient to prove the offense as charged, double jeopardy barred a remand for a new trial and required dismissal.

Questions Presented

1. Whether the district court erred by affirming McGinn's conviction after determining that the breath-test evidence was inadmissible.
2. Whether the evidence remaining after exclusion of the breath-test evidence was sufficient to sustain the conviction under the offense as charged in the complaint.
3. Whether double jeopardy barred a remand for a new trial because the evidence admitted at trial was insufficient to support the charged offense.

Disposition

reversed_and_remanded