dissenting.
The majority holds that the trial court erred in granting a new trial after determining that, based on a change in the law, it had given an erroneous jury instruction. Because I agree that the relief granted by the trial court was appropriate, I respectfully dissent.
The determination of whether to grant a new trial is within the discretion of the trial court, and will not be reversed absent an abuse of that discretion. Commonwealth v. Powell, 527 Pa. 288, 292, 590 A.2d 1240, 1242 (1991). At the outset, *358appellant requested either a new trial or arrest of judgment. I cannot agree that the trial court abused its discretion in granting relief which was in fact specifically requested by appellant. Furthermore, I believe that the trial court’s ruling was correct.
The trial court determined that a new trial was required in the interest of justice in order to avoid prejudicing the Commonwealth because of a change in the law. In this Commonwealth, “[a] trial court has an ‘immemorial right to grant a new trial, whenever, in its opinion, the justice of the particular case requires.’ ” Id. at 293, 590 A.2d at 1242 (citations omitted). At the time of appellant’s trial, the state of the law was that the Commonwealth had no obligation to present any evidence relating appellant’s blood alcohol content (BAC) at the time of testing back to the time of driving. Commonwealth v. Speights, 353 Pa.Super. 258, 266, 509 A.2d 1263, 1267 (1986), alloc, denied, 517 Pa. 594, 535 A.2d 83 (1987). Because the Commonwealth proceeded through trial in accordance with the applicable law, and the trial court so instructed the jury on the then applicable law, the trial court determined that justice weighed against its granting appellant’s motion in arrest of judgment and that a new trial was the appropriate remedy. Specifically, the trial court stated, “in consideration of the Court’s charge, the issue of blood alcohol content was sufficiently ambiguous as to leave open to speculation the question of [appellant’s] BAC at while driving.” Commonwealth v. Shade, No. CR-90-411, slip op. at 4 (C.P. Northumberland County June 3, 1992).1 Thus, the trial court’s determination that appellant was deprived of a fair trial was based not upon the sufficiency of the evidence presented, but upon the erroneous instruction from the trial court concerning what the *359evidence so presented had to establish in order to sustain a conviction. For several reasons, I do not believe that granting a new trial as opposed to an arrest of judgment under those circumstances was an abuse of discretion.
First, neither Commonwealth v. Modaffare, 529 Pa. 101, 601 A.2d 1233 (1992), nor Commonwealth v. Jarman, 529 Pa. 92, 601 A.2d 1229 (1992), are determinative of the outcome in this case. While this Court determined that the evidence in those cases was insufficient to support the verdicts, those holdings were based on the specific facts of those cases. In Modaffare, the defendant’s BAC registered at .108% almost two hours after the time at which he was driving. In Jarman, the defendant’s BAC registered .114% an hour after driving. And in both cases, expert witnesses testified that it was possible or even probable that the defendants’ BACs had peaked between the time of the stop and the time of testing. The Court specifically held in those cases that the Commonwealth must relate BAC back to the time of driving and that, where the BAC barely exceeded .10% and there had been a significant time lapse between driving and the blood test, the inference of guilt was weakened, and therefore more evidence than simply BAC test results would be required to sustain a conviction. Jarman, supra at 96, 601 A.2d at 1231; Modaffare, supra at 105, 601 A.2d at 1235. Under the circumstances of those particular cases, the Court held that the evidence was insufficient to establish relation back of the appellants’ BACs to the time of driving. Jarman, supra at 97, 601 A.2d at 1231; Modaffare, supra at 106-07, 601 A.2d at 1236.
In the present case, however, appellant’s BAC, taken forty-five minutes after driving, was .142%, more than 40 percent over the legal limit, a deviation which, unlike the majority of this Court, I consider to be significant. Additional evidence was also presented at trial, including that at the time appellant was stopped he smelled of alcohol, had bloodshot eyes, was slurring his speech and had trouble keeping his balance. Appellant also failed two field sobriety tests. Given the high BAC and the additional circumstantial evidence that appellant was under the influence of alcohol at the time of driving, the *360jury could have found that the Commonwealth established relation back with the evidence presented at trial, had they been so instructed under the rationale of Modaffare and Jarman. See also, Commonwealth v. Yarger, 538 Pa. 329, 648 A.2d 529 (1994) (BAC result of .18% is sufficient by itself to establish prima facie case of DUI, and Commonwealth is not required to present expert testimony to establish relation back).
Moreover, the Majority erred in applying Commonwealth v. Loeper, 541 Pa. 393, 663 A.2d 669 (1995) (circumstantial evidence not admissible to prove BAC at the time of driving under 75 Pa.C.S. § 3731(a)(4)), to this case. Loeper was not decided until after this case was submitted to this Court and was not made retroactive. Furthermore, appellant did not raise or preserve the issue of whether evidence of physical impairment other than one’s BAC was improper to determine intoxication, which was the issue in Loeper. Therefore, appellant is not entitled to an arrest of judgment based on that ruling.2
Finally, I wish to reiterate my conviction that this Court has disregarded the intent of the legislature in holding that circumstantial evidence is inadmissible for the purpose of establishing that a person’s BAC was .10% or greater at the time of driving. As I stated in my dissent in Loeper, the legislature has provided that, while chemical test results are admissible in order to establish BAC, their admissibility “shall not be construed as limiting the introduction of any other competent evidence bearing upon the question of whether or not the *361defendant was driving under the influence of alcohol.” Id. at 405, 663 A.2d at 675, citing 75 Pa.C.S. § 1547(f). In holding to the contrary, the Majority has changed the burden on the Commonwealth from “beyond a reasonable doubt” to “by a mathematical certainty.”
Because I do not believe that the trial court abused its discretion in granting relief which served the interests of justice and was specifically requested by appellant, I would affirm the order of the Superior Court affirming the trial court’s grant of a new trial.
NIGRO and NEWMAN, JJ., join in this dissenting opinion.
. The majority asserts that "the insufficiency of the evidence ... does not appear to be an issue in dispute among the parties.” Op. at 351. However, the Commonwealth does not concede that the evidence was insufficient to support appellant's conviction. Furthermore, neither the trial court nor the Superior Court held that the evidence was insufficient, but merely that it was unclear whether the jury would have found that the evidence that was presented at trial sufficiently related appellant’s BAC back to the time of driving had they been instructed that such a finding was necessary.
. Furthermore, I would note that I dissented in Loeper based upon my belief that the statute expressly permits the use of circumstantial evidence through 75 Pa.C.S. § 1547(f), which provides:
Other evidence admissible.—Subsections (a) through (i) [relating to chemical testing to determine BAC] shall not be construed as limiting the introduction of any other competent evidence bearing upon the question of whether or not the defendant was driving under the influence of alcohol.
Apparently, the legislature needs to amend this language to clarify even further that circumstantial evidence may be used in addition to chemical test results to establish BAC at the time of driving in view of the majority’s ruling in Loeper that circumstantial evidence is not admissible.