Criminal Law: Courts: Appeal and Error. In
an appeal of a criminal case from the county court, the
district court acts as an intermediate court of appeals, and
its review is limited to an examination of the record for
error or abuse of discretion.
Courts: Appeal and Error. Both the district
court and a higher appellate court generally review appeals
from the county court for error appearing on the record.
Judgments: Appeal and Error. When reviewing
a judgment for errors appearing on the record, an appellate
court's inquiry is whether the decision conforms to the
law, is supported by competent evidence, and is neither
arbitrary, capricious, nor unreasonable.
Appeal and Error. An appellate court
independently reviews questions of law in appeals from the
Criminal Law: Courts: Appeal and Error. When
deciding appeals from criminal convictions in county court,
an appellate court applies the same standards of review that
it applies to decide appeals from criminal convictions in
Convictions: Evidence: Appeal and Error. In
reviewing a criminal conviction for a sufficiency of the
evidence claim, whether the evidence is direct,
circumstantial, or a combination thereof, the standard is the
same: An appellate court does not resolve conflicts in the
evidence, pass on the credibility of witnesses, or reweigh
the evidence; such matters are for the finder of fact.
Courts: Appeal and Error. The State has the
right to appeal a decision of the district court sitting as
an intermediate court of appeals.
Appeal and Error. An appellate court does
not consider errors which are argued but not assigned.
Neb. 225] 9.__ . An appellee's argument that a lower
court's decision should be upheld on grounds specifically
rejected below constitutes a request for affirmative relief,
and the appellee must cross-appeal in order for that argument
to be considered.
Drunk Driving: Blood, Breath, and Urine Tests:
Evidence: Proof. A driving under the influence
offense can generally be shown either by evidence of physical
impairment and well-known indicia of intoxication or simply
by excessive alcohol content shown through a chemical test.
Criminal Law: Evidence: Double Jeopardy: New Trial:
Appeal and Error. Upon finding reversible error in a
criminal trial, an appellate court must determine whether the
total evidence admitted by the district court, erroneously or
not, was sufficient to sustain a guilty verdict. If it was
not, then double jeopardy forbids a remand for a new trial.
Criminal Law: Convictions: Evidence: Appeal and
Error. When reviewing a criminal conviction for
sufficiency of the evidence to sustain the conviction, the
relevant question for an appellate court is whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.
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.
Forrest F. Peetz, of Peetz Law, PC, L.L.O., for appellant.
J. Peterson, Attorney General, and Nathan A. Liss for
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
J. McGinn appeals the district court's decision affirming
his conviction for driving under the influence, second
offense, in violation of Neb. Rev. Stat. § 60-6, 196
(Reissue 2010). The district court determined the county
court erred in admitting breath test evidence but affirmed
the conviction by finding there was sufficient evidence to
support [303 Neb. 226] McGinn's conviction. The State has
not appealed the district court's decision on the
inadmissibility of the breath test evidence. Therefore, the
sole issue on appeal is whether the district court erred in
affirming the conviction after finding the breath test
evidence inadmissible. For the reasons set forth herein, we
reverse the district court's decision and remand the
cause with directions.
case originated in August 2017 when McGinn was charged with
driving under the influence of alcohol, second offense, in
violation of § 60-6, 196, stemming from a traffic stop
of his vehicle in July. According to the complaint, McGinn
operate[d] or ha[d] actual physical control of a motor
vehicle while under the influence of alcoholic liquor when
he/she had a concentration of .08 grams or more by weight of
alcohol per 210 ml of his/her breath, but less than .150
grams by weight of alcohol per 210 ml of his/ her breath.
the traffic stop and subsequent investigation, the arresting
officer conducted field sobriety tests and a ...