Impoundment and Confiscation of Vehicles

Impoundment and Confiscation of Motor Vehicles

Under certain circumstances, police and the courts can cause vehicles to be impounded for a period of time or, in some cases, confiscated and forfeited.

This section sets out when a vehicle may be impounded or confiscated.  It also sets out the options a person may have to avoid impoundment or confiscation.

Our solicitors are able to give detailed advice and assist in cases where a vehicle has, or is to be, impounded or confiscated and forfeited.

This information is separated into two section: powers of police and powers of a court.

Definitions

The following are definition which are used in this section.  These definitions are found in section 78A of the Road Traffic Act 1974 (WA).

Impounding Offence (Driving)

The following offences are defined as “impounding offences (driving)” pursuant to section 78A of the Road Traffic Act 1974 (WA):

  • Driving in a Reckless Manner” pursuant to section 60 of the Road Traffic Act 1974 (WA);
  • Driving at a Reckless Speed” pursuant to section 60A of the Road Traffic Act 1974 (WA);
  • Causing Excessive Noise or Smoke from Vehicle’s Tyres” pursuant to section 62A of the Road Traffic Act 1974 (WA); and
  • Any offence which was stipulated to be an “impounding offence (driving)” at the time of the commission of the relevant offence.

Impounding Offence (Driver’s Licence)

The following offences are defined as “impounding offences (driver’s licence) pursuant to section 78A of the Road Traffic Act 1974 (WA):

  • Driving a motor vehicle on a road while not authorised to do so pursuant to Part 2 of the Road Traffic (Authorisation to Drive) Act 2008 (WA) when it is committed by a person:
    • Who has applied for, but been refused, a driver’s licence in Australia;
    • Who was disqualified from holding a driver’s licence at the time of the commission of the offence;
    • Who has held a driver’s licence in Australia but ceased to hold that licence other than:
      • Because the person, before the commission of the offence, voluntarily surrendered the driver’s licence;
      • Because the driver’s licence expired; or
      • Because the person is no longer authorised to drive as a result of penalty enforcement laws (pursuant to sections 19 or 43 of the Fines , Penalties and Infringement Notices Enforcement Act 1994 (WA));
    • Whose driver’s licence was suspended other than as a result of penalty enforcement laws (pursuant to sections 19 or 43 of the Fines , Penalties and Infringement Notices Enforcement Act 1994 (WA)); or
    • Who is of a class of person to whom the grant of a driver’s licence can be refused pursuant to the Road Traffic (Authorisation to Drive) Regulations 2014 (WA); or
  • Driving on a road other than at a time, for a purpose, or in a locality or on roads as specified in an extraordinary driver’s licence which has been granted to the person and was current at the time of the commission of the offence.

Person Responsible for a Vehicle

Where this term is used, it refers to a person who:

  • Is the licence holder of a vehicle which is licensed;
  • Is the new owner of a vehicle where notice has been given of the change of ownership pursuant to the Road Traffic (Vehicles) Act 2012 (WA) or corresponding legislation from another State or Territory (unless the new owner did not consent to becoming the owner of the vehicle);
  • Was the last person who was responsible for a vehicle which is no longer licenced; or
  • Is entitled to immediate possession of the vehicle.

Impounding of Vehicles by Police

This section contains information on the powers of police to impound vehicles.  It contains information on which offences can result in impoundment and the process which occurs when police order a vehicle to be impounded.

Police can impound a vehicle at the time of the offence or they may serve a “surrender notice” up to 28 days after the date of any relevant offence.  A person who receives a “surrender notice” must comply with that notice and surrender the vehicle at the place stipulated within 7 days of receiving the notice.

Vehicles impounded under this provision are impounded for a period of either 28 days or 3 months depending on the offence committed and whether the person is considered a “previous offender”.  The period of impoundment commences on the day the vehicle is surrendered or – if the person fails to surrender the vehicle – on the day the police seize the vehicle.

When a police officer impounds a vehicle, they must notify a “senior police officer” – who is a police officer of or above the rank of Inspector.  That “senior police officer” must ensure that the criteria for impounding the vehicle are satisfied and that the impoundment period imposed is correct.

A “surrender notice” can be cancelled in certain circumstances.  Where a “surrender notice” is served and the relevant vehicle has not yet been surrendered for impoundment, the “surrender notice” may be cancelled by a “senior police officer” if that officer is satisfied that:

  • There exists grounds which would satisfy the provisions for the “release of an impounded vehicle” if the vehicle had already been impounded; or
  • The vehicle’s condition renders it incapable of being licenced in WA.  It is important to note that a person who deliberately damages a vehicle and renders it in such a state commits an offence.

If a person is convicted of the offence which gives rise to the vehicle being impounded by police, then pursuant to section 79E of Road Traffic Act 1974 (WA) (the Act), the person is liable to pay the “reasonable expenses” incurred by police that relate to the impoundment.  If these expenses are not paid prior to the date when the impoundment ends, the vehicle may not be released until such expenses are paid pursuant to section 80IB(1) of the Act.  Further to this, pursuant to section 80I of the Act, if a person does not collect a vehicle after the impoundment ends, they may be liable to expenses incurred in storing the vehicle after the release date of the vehicle.

If an impounded vehicle is not collected within 7 days of the end of the impoundment period, pursuant to section 80J(2) of the Act, the Commissioner of police may give notice that they intend to sell or dispose of the vehicle.

Previous Offender

Any reference to a “previous offender”, pursuant to section 79(1A) of the Road Traffic Act 1974 (WA), refers to a person who has previously been convicted of an “impounding offence (driving)” or who has an “impounding offence (driving)” pending against them.

Impounding of Vehicles Used in “Impounding Offences (Driving)”

Pursuant to section 79(1) of the Road Traffic Act 1974 (WA) (the Act), if a police officer reasonably suspects that a person, whilst driving a vehicle, has committed an “impounding offence (driving)”, the police officer must impound the vehicle unless it is impractical to do so in the circumstances.

Vehicles which are impounded under this section are impounded for a period of 28 days unless the person who was driving the vehicle is a “previous offender” in which case the vehicle will be impounded for 3 months.  It is possible that a police officer who impounds a vehicle may not be aware that the person is a “previous offender” at the time of the impoundment and only orders that the vehicle be impounded for 28 days.  In such cases, the Commissioner of police must extend the impoundment period to 3 months once police become aware the person is a “previous offender”.  If this occurs, the Commissioner is required to serve a notice upon the person no less than 24 hours prior to the end of the initial 28 day period.

Conversely, if a person is acquitted of a charge which results in that person no longer being considered a “previous offender”, then, pursuant to section 79BC of The Act, the 3 month period of impoundment is reduced to 28 days.  If that 28 day period has already expired at the time the person is acquitted, the impoundment period ends on the day the person is acquitted.

Impounding of Vehicles used in “Impounding Offences (Driver’s Licence)”

Pursuant to section 79A of the Road Traffic Act 1974 (WA) (the Act), if a police officer reasonably suspects that a person, whilst driving a vehicle, has committed an “impounding offence (driver’s licence)”, the police officer must impound the vehicle within 28 days of the offence unless it is impractical to do so in the circumstances.

 A vehicle impounded under this provision is to be impounded for a period of 28 days.

Offences

Fail to Comply with a Surrender Notice

Pursuant to section 79BB(5) of the Road Traffic Act 1974 (WA) (the Act), a person who does not comply with the requirements of a “surrender notice” commits an offence.  If a person does not comply with the notice and fails to surrender the vehicle, the police can seize the vehicle to impound it.  As such, a person who does not surrender the vehicle will not avoid having the vehicle impounded.

The penalty for this offence is a fine of up to 2,500.00.

If a person fails to comply with the “surrender notice” the Commissioner of police may, pursuant to section 79BD(1) of The Act,  also order that the licence in respect of the vehicle be suspended.  This results in the car not being able to be legally driven on a road.  Such a suspension would last until the vehicle was surrendered or a “senior police officer” made a determination that a factor which satisfied the provisions in relation to the “release of an impounded vehicle” existed.

Dispose of Interest in vehicle or Reduce Value of Vehicle

Pursuant to section 79BB(6) of the Road Traffic Act 1974 (WA) (the Act), a person who has been served with a “surrender notice” commits an offence if they:

  • Dispose of an interest in the vehicle: this includes such things as selling the vehicle or giving the vehicle to another person; or
  • Do anything, or cause anything to be done to the vehicle which reduces it value: this could include such things as taking parts from the vehicle or intentionally damaging the vehicle.

The penalty for this offence is a fine of up to $2,500.00.

Release of Impounded Vehicle

A vehicle is released at the expiration of the relevant impoundment period.  There are also specified circumstances under which the Commissioner of police can release an impounded vehicle prior to the expiration of the relevant impoundment period.  These circumstances are set in section 79D(2) of the Road Traffic Act 1974 (WA) (the Act). 

For the purpose of this section, a “senior police officer” is a police officer of or above the rank of Inspector.

Exceptional Hardship

Exceptional Hardship” is hardship which is beyond inconvenience or hardship caused by the impoundment of the vehicle.  Impoundment is designed to cause hardship so to be considered ”exceptional” it needs to go beyond the hardship intended.  An example of this could include where a person was unable, as a result of the impoundment of the vehicle, to access significant medical treatment required.  It may also include where a person would lose employment – and be unable to secure alternative employment – which would cause “exceptional hardship” as a result of the vehicle being impounded.  The specific circumstances of a person in each case will be considered to determine if any hardship would be “exceptional”.

The Commissioner of police may release an impounded vehicle where:

  • A “senior police officer” is satisfied that at the time of the relevant offence the vehicle was a stolen vehicle or a hired vehicle;
  • A “senior police officer” is not satisfied that the criteria for impounding the vehicle is fulfilled;
  • A “senior police officer” is satisfied that unless the vehicle is released, the continued impoundment of the vehicle will result in “exceptional hardship”;
  • A “senior police officer” is satisfied that at the time of the relevant offence, the impounded vehicle was in the possession of a “vehicle service provider” with the consent of the owner.  A “vehicle service provider” is a person who, for reward, services vehicles.  This also extends to any person the “vehicle service provider” lends the car to for the purpose of servicing the vehicle;
  • A “senior police officer” is satisfied that at the time of the relevant offence, the vehicle was;
    • For sale;
    • The person driving the vehicle was test-driving the vehicle with the consent of the owner and the owner had ensured the test-driver held a valid driver’s licence and had informed them that they must obey the law when test-driving the vehicle;
    • The person driving was not employed or contracted by the owner; and
  • A “senior police officer” is satisfied that at the time of the relevant offence;
    • The vehicle was used primarily in the course of running a business;
    • The person who committed the offence was an employee or contractor of the business;
    • The person was driving with the consent of the business owner or agent of the business owner and the business owner had ensured the driver held a valid driver’s licence and had instructed them that they must obey the law when driving the vehicle; and
  •  A “senior police officer” is satisfied that at the time of the relevant offence;
    • The vehicle was a taxi;
    • The person driving the taxi was driving under an agreement with the taxi operator to drive the taxi for reward and pay money to the taxi operator;
    • The taxi operator had ensured the driver held a valid driver’s licence and had instructed them that they must obey the law when driving the taxi; and
    • The driver was not a “person responsible” for the taxi;
  • A “senior police officer” is satisfied that the vehicle involved was, at the time of the offence;
    • Licensed as a bus;
    • The driver was an employee or contractor of the licence holder;
    • The driver was driving with the consent of the licence holder;
    • The licence holder had ensured the driver held a valid driver’s licence and had instructed them that they must obey the law when driving the bus; and
    • The driver was a not a “person responsible” for the bus; or
  • A “senior police officer” is satisfied that the vehicle cannot be released under any of the above provisions and if the vehicle was not released a person other than the alleged offender would suffer “manifest injustice or unfairness”.  An example of where this may occur could be where a son of an elderly couple is caught committing a relevant offence:  it may be the impoundment would cause “manifest unfairness” to the parents which could justify release under this provision.

Surrender of a Substitute Vehicle

Pursuant to section 79BCA of the Road Traffic Act 1974 (WA) (the Act), under certain circumstances, police may order that a person surrender a vehicle other than the vehicle in which the relevant offence was committed.

Police may issue a “surrender substitute vehicle notice” where:

  • A vehicle has been impounded under the police powers to impound vehicles;
  • The impounded vehicle has been released under a provision which allows for the “release of an impounded vehicle; and
  • The person who committed the relevant offence is the “person responsible” for more than one vehicle.

A “surrender substitute vehicle notice” must be served within 28 days of the release of the initially impounded vehicle.

The substituted vehicle will be impounded for the same period for which the initially impounded vehicle was to be impounded prior to its being released.  This impoundment period will begin when the substituted vehicle is surrendered for impoundment.

If a person fails to surrender the nominated substituted vehicle, the police may take possession of that vehicle to impound it.  In such a case, the impoundment period will commence at the time the police take possession of it.

Offences

Fail to Comply with a Surrender Substitute Vehicle Notice

Pursuant to section 79BCB(5) of the Road Traffic Act 1974 (WA) (the Act), a person who does not comply with the requirements of a “surrender substitute vehicle notice” commits an offence.  If a person does not comply with the notice and fails to surrender the vehicle, the police can seize the vehicle to impound it.  As such, a person who does not surrender the vehicle will not avoid having the vehicle impounded.

The penalty for this offence is a fine of up to $2,500.00.

If a person fails to comply with the “surrender substitute vehicle notice” the Commissioner of police may, pursuant to section 79BD(1) of The Act,  also order that the licence in respect of the vehicle be suspended.  This results in the car not being able to be legally driven on a road.  Such a suspension would last until the vehicle was surrendered or a “senior police officer” made a determination that a factor which satisfied the provisions in relation to the “release of an impounded vehicle” existed.

Dispose of Interest in vehicle or Reduce Value of Vehicle

Pursuant to section 79BCB(6) of the Road Traffic Act 1974 (WA) (the Act), a person who has been served with a “surrender substitute vehicle notice” commits an offence if they:

  • Dispose of an interest in the vehicle: this includes such things as selling the vehicle or giving the vehicle to another person; or
  • Doing anything, or causing anything to be done to the vehicle which reduces it value: this could include such things as taking parts from the vehicle or intentionally damaging the vehicle.

The penalty for this offence is a fine of up to $2,500.00.

Impounding or Confiscation of Vehicle by Court Order

This section contains information on when a court can order that a vehicle be either impounded or confiscated.  If a vehicle is confiscated it is taken from the owner permanently.

Where a court orders that a vehicle be confiscated, pursuant to section 80D of the Road Traffic Act 1974 (WA) (the Act), property in that vehicle vests entirely in the State.  This means the State owns that vehicle and the person from whom it was confiscated has no right to or any interest in the vehicle from when it is confiscated.

An order for confiscation or impoundment made by a court can made in response to an application bought on behalf of the Commissioner for police.  The application can be heard either at the time of the relevant conviction or within 3 months after the conviction is imposed by the court.  The Commissioner of police is required to notify the person at least 14 days prior to the application being made to the court. 

The court hearing the relevant matter may also make an order for confiscation or impoundment on their own initiative.  The court is required to give at least 14 days notice of its intention to make such an order.

If a person is convicted of the offence which gives rise to the vehicle being impounded by police, then pursuant to section 80H of The Act, the person is liable to pay the “reasonable expenses” incurred by police that relate to the impoundment.  If these expenses are not paid prior to the date when the impoundment ends, the vehicle may not be released until such expenses are paid pursuant to section 80IB(1) of the Act.  Further to this, pursuant to section 80I of the Act, if a person does not collect a vehicle after the impoundment ends, they may be liable to expenses incurred n storing the vehicle after the release date of the vehicle.

If an impounded vehicle is not collected within 7 days of the end of the impoundment period, pursuant to section 80J(2) of the Act, the Commissioner of police may give notice that they intend to sell or dispose of the vehicle.

Confiscation of Vehicles Used in Certain Impounding offences (Driving)

Pursuant to section 80A of the Road Traffic Act 1974 (WA) (the Act), a court may order that a vehicle be confiscated if that vehicle was used in the commission of an “impounding offence (driving)” and:

  • The offence was committed in a “school zone”;
  • The offence was committed in a “confiscation zone” (a road where the speed limit is 50 km/h or less) other than a “school zone” and the commission of the offence resulted in, or was likely to result in;
    • Harassment, intimidation, fear or alarm in a member of the public; or
    • Damage to property, including the road;
  • The offence was committed in a manner which involved exceeding the speed limit by 90 km/h or more;
  • The offence was committed in a “confiscation zone” and:
    • Within 5 years previous to the commission of the offence the person was convicted of committing another “impounding offence (driving)” in a “confiscation zone”; or
  • Within 5 years previous to the date of the commission of the offence, the person has been convicted of 2 or more “impounding offences (driving)”.

Pursuant to section 80E(2) of the Act, where the above provisions are satisfied, a court cannot make an order for confiscation of a vehicle where the vehicle was, at the time of the offence, a “lent vehicle”.  This simply means that at the relevant time the vehicle had been lent to a person by a “person responsible for the vehicle”.  However, the court may instead order that the vehicle be impounded for a period of not more than 6 months, pursuant to section 80FA(2) of the Act.

Pursuant to section 80E(1) of the Act, a court cannot make an order for confiscation of a vehicle under section 80A of the Act if the vehicle, at the time of the commission of the offence, was a stolen vehicle or a hired vehicle.

Pursuant to section 80G(6A), a court must make an order for confiscation under this section unless it is satisfied that the order would cause severe financial or physical hardship to a person who has an interest in the vehicle or is the usual driver of the vehicle, other than the person who was the driver at the relevant time.

Confiscation or Impoundment of Vehicles Resulting from Impounding Offences (Driver’s Licence)

Pursuant to section 80C of the Road Traffic Act 1974 (WA) (the Act), a court may order that a vehicle be confiscated if a person is convicted of an “impounding offence (driver’s licence)” and during the period of 5 years before the date of commission of the offence that person was convicted of 2 or more previous “impounding offences (driver’s licence)”.

Pursuant to section 80FA(1) of the Act, the court may, instead of ordering confiscation as above, order that the vehicle be impounded for a period of not more than 6 months.

Alternatively, pursuant to section 80B of the Act, the court may order the vehicle be impounded for a period of up to 3 months if the person convicted was previously convicted of an “impounding offence (driver’s licence)” within a period of 3 years prior to the commission of the current offence.

Confiscation or Impoundment of Vehicle for Road Rage Offence

Pursuant to section 80CB of the Road Traffic Act 1974 (WA) (the Act), a court that convicts a person of a “road rage offence” may order the confiscation of a vehicle which is:

Alternatively, the court may order the vehicle be impounded for a period of up to 6 months, pursuant to section 80CA of The Act.

 

Road Rage Offence

A “road rage offence” is defined as an offence which is accompanied by “road rage circumstances”, but only if it is an offence of which it is an element that the person charged:

  • Assaults the victim; or
  • Damages property in the possession of or under the control of a victim.

Road Rage Circumstances

Road rage circumstances” accompany the commission of an offence if the offence was committed as a reaction to, and is to a substantial extent motivated by, an occurrence that takes place on a road, or in any place to which the public is permitted, while:

  • The person charged was driving a vehicle on the road or in the place; and
  • The victim is using the same road or place, whether or not they are the driver of or passenger in a vehicle.

“Showing Cause” why a Vehicle Should not be Confiscated or Impounded

In relation to “confiscation or impoundment of vehicles resulting from impounding offences (driver’s licence)” and “confiscation or impoundment of vehicle for road rage offences”, the court must allow:

  • The driver of the vehicle at the time of the offence;
  • Any person – other than the driver – who is a “person responsible for the vehicle”; and
  • Any person who has an interest in the vehicle;

to address the court.  These parties can address the court to attempt to “show cause” as to why the court should not make the order to confiscate or impound the vehicle.  Pursuant to section 80G(5) of the Road Traffic Act 1974 (WA), the court, when deciding if cause has been shown, can consider:

  • Whether the relevant offence was committed with the knowledge and agreement of a person who has an interest in the vehicle;
  • Whether the making of the order will cause severe financial or physical hardship to a person who has an interest in the vehicle or the usual driver of the vehicle; and
  • Any other matter the court thinks is relevant to consider.

The court can decide to not order the impoundment or confiscation if it is satisfied any of the mentioned parties has “shown cause”.

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