CONCURRING AND DISSENTING OPINION BY
COLVILLE, J.I concur with the Majority’s determination that the trial court wrongly instructed the jurors as to what constitutes a refusal to submit to chemical testing. However, I disagree with the Majority’s decision in its Footnote 14 that the improper instruction regarding refusal should not alter Appellant’s DUI conviction. Rather, for the following reasons, I would vacate Appellant’s sentence and conviction for DUI and remand for a new trial on the DUI charge.
As the Majority rightly acknowledges in its Footnote 13, jurors may weigh and consider the fact of refusal when determining whether a defendant was under the influence of alcohol. Indeed, in the present case, the trial court’s final charge to the jurors included the following remarks:
The Commonwealth argues that the testimony tending to show that [Appellant] refused to give a sample of his blood indicates that he was conscious that he was guilty of driving under the influence. The defense attorney argues that [Appellant] did not refuse to give the sample, or this evidence means no such thing. If you believe that [Appellant] was asked for and refused to give a sample of his blood for testing, you may consider that fact along with all the other relevant evidence when you are deciding whether [Appellant] was under the influence of alcohol. Give [Appellant’s] refusal whatever weight and meaning you think it deserves.
N.T., 10/31/12, at 138-39.
Because the jurors in this case were not properly instructed as to what constitutes a refusal, they were not fully equipped to decide whether Appellant was under the influence of alcohol. Therefore, I would vacate Appellant’s sentence and conviction for DUI and would remand for a new trial on the DUI count in its entirety. Thus, while I concur in remanding this case for a new trial, I dissent from the decision to limit the new trial to the issue of refusal.