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 RS Act, to first offenders with a BAC of 0.1 or higher.
Police and courts can impound, immobilise and forfeit 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);
• excessive speeding;
• dangerous driving.
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 per hour;
• speeding 45 km per hour or more, but under 70 km per hour, over the limit, or at 145 km per hour or more but under 170 km per hour;
• failing to stop when directed by police (s 64A);
• entering a rail or tram crossing inappropriately;
• driving with excessive passengers in a car, driving with passengers who are inappropriately seated, and driving with passengers who are not wearing seat belts.
Note that the Transport Act 2017 seeks to abolish the two separate tiers of offences, and to create one list of offences that can result in a motor vehicle being seized. At the time of writing (30 June 2018), this change is not in operation.
Drivers who commit the above driving offences can be dealt with by the police or by the Magistrates’ Court:
• by police action
If the police believe a driver has committed a relevant offence, they may seize, impound or immobilise the driver’s motor vehicle (s 84F RS Act). This decision is subject to review by a senior police officer (an inspector or higher rank) (s 84M). This decision can be appealed to the Magistrates’ Court on the grounds of exceptional hardship (s 84O).
• 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)).
If the car is impounded, magistrates must order the driver to undergo a safe-driving program (s 84BL(1)). The court notifies VicRoads of the order (s 84BL(5)), then VicRoads notifies the driver that they are required to complete the program (s 84BM). If a driver fails to complete the program, their drivers licence can be suspended until they complete the program (s 84BN).
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)).