State v. McGinn, 303 Neb. 224

In July 2017 McGinn was stopped for speeding, found to smell of alcohol, admitted drinking, and performed poorly on multiple field sobriety tests.
A DataMaster breath test at the jail produced a .128 g/210 L result; McGinn requested a secondary (blood) test but officers refused and said any secondary test would be a breath test on the same machine.
McGinn moved to suppress chemical test evidence under Neb. Rev. Stat. § 60-6,199, arguing he was denied the right to an additional test; the county court denied the motion and admitted the breath test.
The county court convicted McGinn of DUI, second offense; he appealed to the district court, which acted as an intermediate appellate court.
The district court held the county court erred in admitting the breath test (finding an unlawful refusal to permit an additional test) but nonetheless affirmed the conviction based on observational evidence of impairment.
The Nebraska Supreme Court considered whether the district court erred in affirming the conviction after excluding the breath test evidence and whether double jeopardy barred retrial.

Issue	Plaintiff's Argument (State)	Defendant's Argument (McGinn)	Held
Whether officer refused to permit an additional test in violation of § 60-6,199 (admissibility of breath result)	State originally defended admission; on appeal argued conviction could be upheld without breath test	Officer denied blood test and limited any secondary test to the same DataMaster, constituting prohibited refusal	District court found officer refused and breath result inadmissible; State did not cross-appeal this ruling, so it stands
Whether remaining evidence (observations and field tests) sufficiently proved DUI as charged after excluding breath evidence	State argued observational evidence showed impairment and could sustain conviction	McGinn argued breath evidence was excluded and remaining evidence insufficient to prove the charged statutory subsection	Supreme Court held complaint charged subsection (1)(c) (breath-based offense); without breath test there was insufficient evidence to sustain that charge and conviction must be dismissed
Whether appellate courts may consider alternative grounds not adopted below (State’s attempt to affirm on different theory)	State asked to uphold conviction on observational-evidence theory even though district court rejected that ground	McGinn opposed reliance on unappealed alternative bases	Court held appellee must cross-appeal to obtain affirmative relief on grounds rejected below; State failed to preserve such argument

State v. Thalken, 299 Neb. 857 (Neb. 2018) (district court as intermediate appellate court; State’s right to appeal)
State v. Merchant, 288 Neb. 440 (Neb. 2014) (test for sufficiency of evidence and double jeopardy bar to retrial)
State v. Casillas, 279 Neb. 820 (Neb. 2010) (DUI proof may be by chemical test or by observational indicia)
State v. Jedlicka, 297 Neb. 276 (Neb. 2017) (appellate court will not consider arguments not assigned as error)
State v. Mendez-Osorio, 297 Neb. 520 (Neb. 2017) (appellate preservation principles)