Police and courts can order the impoundment or immobilisation of motor vehicles for a variety of offences, apart from hoon driving. Repeat offenders may forfeit their vehicles. Offenders nay seek exemption on exceptional hardship grounds. Magistrates can order hoon drivers to undergo a safe driving program.
This power was initially introduced to seize motor vehicles of young drivers convicted of “hoon” offences (that is, driving erratically or speeding in suburban streets). It has now been extended to large number of offences, including, in the 2014 Act, to first offenders with a BAC of 0.1 or higher.
Police and courts can make orders for impoundment, immobilisation and forfeiture of motor vehicles belonging to drivers who are convicted of certain serious driving offences. There are two tiers of offences that carry a penalty of motor vehicle seizure.
First-tier offences include:
•driving while disqualified (second or subsequent offence);
•driving while unlicensed (second or subsequent offence);
•drink-driving (second or subsequent offence);
•drug-driving (second or subsequent offence);
Second-tier offences include:
•dangerous driving, careless driving, making unnecessary noises, lack of proper control of the motor vehicle and engaging in a speed trial, where in all these offences there is an improper use of the motor vehicle, provided speed is between 45–70 km/h (for a definition of this, see “Improper use of a motor vehicle”);
•speeding 45 km/h or more, but under 70 km/h, over the limit, or at 145 km/h or more but under 170 km/h;
•failing to stop when directed by police (s 64A);
•entering a rail or tram crossing inappropriately; and
•driving with excessive passengers in a car, driving with passengers who are inappropriately seated, and driving with passengers who are not wearing seat belts.
Drivers who commit the above driving offences can be dealt with by police or by the Magistrates’ Court as follows:
•by police action
If police believe a driver has committed a relevant offence, they may seize, impound or immobilise the driver’s motor vehicle (s 84F RSA). This decision is subject to review by a senior police officer of the rank of inspector or above (s 84M). This decision can be appealed to the Magistrates’ Court on the grounds of exceptional hardship (s 840).
•by Magistrates’ Court action
A driver who has committed a tier-one or tier-two offence (where the driver has, within six years of committing a tier-two offence, committed one or more relevant offence) must have their car immobilised for a minimum period of 45 days, and up to three months (s 84S).
A driver who has committed a tier-one offence (where the driver has, within six years, committed one or more tier-one offences, or two or more tier-two offences) or who has committed a tier-two offence (and within the last six years has committed two or more relevant offences) may have their motor vehicle forfeited (s 84T).
These orders may be avoided if the driver is experiencing exceptional hardship. This requires the magistrate to consider the driver’s employment, as well as road safety and the public’s best interests (s 84Z). Although, if exceptional hardship is granted, the driver may have to give an undertaking regarding driving the vehicle and other matters (s 84Z(3D)). Any driver seeking an exceptional circumstances exemption must give at least seven days’ notice to the police of this application (s 840(2A) and the grounds for exceptional circumstances (s 84O(2B)).
Often, the driver who commits a tier 1 or tier 2 offence is driving a motor vehicle registered to another person. In these circumstances police can take two forms of action:
1 A vehicle seizure order application against the owner (s 84V). The owner should appear in court to show cause why the vehicle should not be seized (s 89W). It is possible to have these applications withdrawn or dismissed, although legal advice should be obtained regarding the merits of this.
2 A substitution vehicle application. Police may seek a vehicle substitution order application in respect of the motor vehicle owned by the driver who has committed the tier 1 or tier 2 offence (s 84V(1)). Courts can make these orders provided the order does not cause undue hardship (s 84V(3)).