dissenting.
I must respectfully Dissent. I agree with the majority that “the trial court erred in allowing the Commonwealth to introduce testimony that the test was given and further erred in instructing the jury that the test could be considered, even for the limited purpose of establishing probable cause to arrest.” “Preliminary Breath Tests are to be treated like polygraph tests — their results are inadmissible and any deliberate attempt to reveal to the jury the fact that the test was given, even without letting the jury know the result, is error.”
I disagree with the majority, however, with their conclusion to the effect that the admission constitutes harmless error. Even though the jury heard testimony that the results of appellant’s breathalyzer test was .12%, they did not convict her of driving with a blood alcohol level of .10% or greater. The court advised the jury that the preliminary breath test was used by the police to assist them in determining whether or not they have probable cause to arrest and that the jury could consider the fact that the officer did use the test and administered it. Even though the jury was not told the results of the test, they were very aware of the results. The appellant was arrested. This had to impact upon the jury.
In my judgment, this was a serious error. I would grant a new trial.