Impoundment/ immobilisation / Forfeiture of a motor vehicle (Part 6A of the Road Safety Act 1986)
Initially introduced in 2006, anti-hoon laws came into effect to allow police to crack down on hoon driving. Police have the power to impound, immobilise or permanently confiscate (forfeit) vehicles driven in ways deemed to be dangerous or reckless. Initially these powers were not utilised very often by police.
As of 1 July 2011 it got tougher with the Victorian parliament introducing stringent new anti-hoon laws by way of the 2010 Road Safety Amendment (Hoon Driving) Act. Since the introduction of the new laws the Chief Commissioner of Police has put in place a separate impoundment division to ensure that police charging hoon drivers are able to impound vehicles, and in certain circumstances making applications to the Court to forfeit vehicles to the government.
When can police impound or immobilise your motor vehicle?
Now if a police member has a reasonable belief that a driver has committed a ‘related offence’, they have the power to seize the vehicle and impound or immobilise it for a period of 30 days. Prior to 2011 it was only 48 hours. The laws are very draconian, it does not matter who owns the vehicle, it can be impounded regardless. We have represented hundreds of clients in circumstances where the car in question should never have been taken in the first place.
What happens when police impound or immobilise your motor vehicle?
Under section 84I of the Road Safety Act (RSA) if a motor vehicle is seized or surrendered in accordance with section 84G or 84H, a police officer may direct that the motor vehicle be moved to a holding yard by any reasonable and appropriate means and impound it there for a the designated period or have the vehicle immobilised (by wheel clamps, a steering wheel lock or any other means) for the balance of the designated period. They may also do anything else reasonably necessary in the execution of their duties.
Can I appeal an initial impoundment order?
- Yes you can appeal a decision by police to impound your vehicle under section 84O of the Road Safety Act 1986.
- There are notice requirements and other factors to consider.
- An applicant must satisfy a magistrate that exceptional hardship exists to justify the immediate release of the vehicle.
- As apart of that appeal proceed it should be noted per 84O(4) of the RSA a magistrate has the power to reduce or remove all designated costs associated with the impoundment.
WHAT IS HOON DRIVING?
‘Hoon driving’ is a term used to define driving that is dangerous and reckless, thereby putting the public at risk. Section 84F of the RSA provides the power for the surrender of a motor vehicle if a police officer believes on reasonable grounds that a motor vehicle has been used in the commission of a relevant offence.
What is a relevant offence?
Section 84C of the RSA defines “relevant offences” that can render a vehicle liable to immediate impoundment or immobilisation and ultimately forfeiture in some cases. These include:
- Drive unlicenced/disqualified (not in relation to a situation where section 18(2) applies and not in relation to s30AA, suspension due to warrants)
- Drink driving (BAC 0.10 or more)
- Loss of traction
- Breach of alcohol interlock condition
- Dangerous driving
- Careless driving (only in relation to improper use)
- Involvement in street racing or speed trial on a road
- Failing to stop when directed by the police
- Driving 45km per hour above the applicable speed limit
There are other conditions in relation to different offending that when they occur within a 6 year window, those offences, become a relevant offence.
In relation to impounding vehicles prior to the relevant alleged offence being listed at court, per section 84F police can impound a motor vehicle for the designated period being 30 days beginning at the time the vehicle is seized or surrendered under section 84G (seizure) or 84H (surrender).
WHAT DOES THIS MEAN IF YOU ARE FOUND GUILTY OF HOON OFFENCES?
Notwithstanding that your car may have already been impounded or immobilised prior to attending court, upon entering a plea of guilty to a hoon offence the prosecution can make a further application to impound, immobilise or forfeit your motor vehicle depending on the offence.
On application under section 84U(1),
- Where a driver is found guilty of a relevant offence and
- within the 6 years immediately preceding the commission of that offence the driver has committed one or more other relevant offences,
the court must order, subject to section 84Z, that the motor vehicle used in the commission of the relevant offence before the court or a substituted motor vehicle be impounded or immobilised for a period not exceeding 3 months in total (including any period of impoundment or immobilisation during the designated period) or that the car be forfeited to the Crown under section 84T.
This can still occur even when the person driving was not the owner of the motor vehicle subject to the application. It is a complicated area of the law, if you are facing forfeiture, you should do yourself a favour and call our office for advice.
How do I resist a forfeiture application?
Though the police have a right to make an application it does not mean that it will be granted. There are submissions that can be made on behalf of a defendant, particularly if a 3rd party would be affected by the impoundment or when the defendant or owner of the vehicle can make out extenuating circumstances, although this is subject to certain conditions.
Because of 84Z(3AB) of the RSA it is difficult to fight forfeiture orders on the grounds of exceptional hardship but it is not impossible.
If you are facing a forfeiture application, you should absolutely consult with an experienced traffic lawyer to determine whether it possible to resist the prosecutor’s application, bad advice could cost you your motor vehicle.
The legislation is complicated, and the above information is just an overview provided to give people affected by the hoon legislation some insight into the complexities involved in this legislation.
It is critical when a person has to attend Court in relation to any of these offences that have a lawyer who can competently communicate the relevant information to a Magistrate to reduce the penalties that may apply.
At Dribbin & Brown Traffic Lawyers we routinely represent clients affected by this legislation. If you have had your car or bike impounded or are facing forfeiture call our office today and speak to one of our lawyers about how we might best approach your matter.
