Does the failure of a police officer to present a breathalyser immediately at the point of making a request for a preliminary breath test, render an offence under s. 49(1)(c) invalid?

DPP v Alliston [2006] VSC 330 was a DPP appeal from a question of law arising from a decision of the Magistrates Court.   

The defendant was intercepted by police after the police officers observed his vehicle swerve from one side of the road to the other.  He was requested to undergo a preliminary breath test.  The police officer requesting the test, had to call via radio for the delivery of a preliminary breath testing device from another police van in the area.  When it arrived the defendant was asked to provide a preliminary breath test which he refused. 

At the end of the contested hearing, the Magistrate ruled that he had not received any evidence to the effect that the device presented was a prescribed device as required under the Road Safety Act 1986 and regulations.  The Magistrate, in dismissing the charge also ruled that a request could not be made until a prescribed device was presented to the defendant.

The Supreme Court on appeal, held that s. 49(1A) removed the previous requirement that the presecribed device be presented at the time of the request.  As it was not an essential element that the presecribed device be presented at the time of the request for a preliminary breath teset, the appeal was upheld, and the case remitted back to the Magistrates Court for determination.