Hoon Laws and Impoundment and Forfeiture Cases — Criminal Defence Lawyer Melbourne
“Hoon Laws” – Impoundment, Immobilisation and Forfeiture of Motor Vehicles
Wherever they can, the Police try and have the car forfeited. However, a Court has to agree to this. This is where a good lawyer is required. Forfeiture is not the same as impoundment, which is often mandatory but for a relatively short period.
Road Safety Act 1986
Section 84S – Impoundment or immobilisation order
If a driver is found guilty of:
(a) a tier 1 relevant offence; or
(b) a tier 2 relevant offence which is their second or subsequent offence in the past 6 years
the Court must order that the vehicle used in the commission of the relevant offence:
(c) be impounded or immobilised for a period of 45 days (or any longer period up to 3 months, upon application by the Chief Commissioner of Police); OR
(d) be forfeited to the Crown by order under s 84T(1).
Section 84T – Forfeiture order
If a driver is found guilty of:
- a tier 1 relevant offence which is their second or subsequent tier 1 relevant offence in the past 3 years;
- a tier 2 relevant offence which is their thirdor subsequent tier 2 relevant offence in the past 3 years;
- a tier 2 relevant offence and they have committed 2 or more relevant offences (either tier 1 or tier 2) in the past 3 years
the Court may order that the vehicle used in the offence be forfeited.
Section 84Z – Hearing of application
Any person, when served with a notice for impoundment, immobilisation or forfeiture order, must be allowed to be heard at the hearing of the application for the order. They must be allowed to show cause why the order should not be made.
What is a relevant offence?
Relevant offence means:
(a) a tier 1 relevant offence; or
(b) a tier 2 relevant offence.
Tier 1 relevant offence means:
(a) second or subsequent offence against s 18(1) – unlicensed driving
(b) second or subsequent offence against s 30(1) – drive while disqualified
(d) second or subsequent offence against s 49(1)(bb)(h) or (i) – driving under influence of drugs
(da) second or subsequent offence against s 49(1)(bc) or (j) – driving under the influence of alcohol, with a reading of between 0.05 and 0.10, and under the influence of illicit drugs
(db) an offence against s 49(1)(bc) or (j) – driving under the influence of alcohol, with a reading of between 0.05 and 0.10, and under the influence of illicit drugs – committed by a person who has been convicted of an offence against s49(1)(bb), (h), or (i) – driving under the influence of illicit drugs
(dc) an offence against s 49(1)(bb), (h) or (i) – driving under the influence of illicit drugs – committed by a person who has been convicted of an offence against s 49(1)(bc) or (j) – driving under the influence of alcohol, with a reading of between 0.05 and 0.10, and under the influence of illicit drugs
(e) second or subsequent offence against s 65B – heavy vehicle exceeding speed limit by more than 35 km/hr
(f) second or subsequent offence against s 64(1) – dangerous driving more than 70km/hr over the speed limit, or over 170km/hr in a 110km/hr zone
(g) an offence against s 319AA(1) of the Crimes Act 1958 (Vic) – dangerous or negligent driving while being pursued by police
Tier 2 relevant offence means:
(aa) offence of: .05 reading, .10 or more,
(a) an offence against s 64(1) – dangerous driving
(a)(i) improper use of a vehicle
(a)(ii) 45 kilometres or more over the limit, but under 70 kilometres over
(a)(iii) if the speed limit is 110 km/h, 35 kilometres over, but under 60 kilometres over
(b) an offence against s 64A(1) – driving when directed to stop
(c) an offence against s 65(1) – careless driving involving improper use of a vehicle
(d) an offence against s 65A(1) – improper use which causes loss of traction on tyres (ie. wheelies)
(da) an offence against s65C(1) – riding a miniaturised motorcycle on a road or road related area
(e) an offence against s 68(1) or (2) – speed trials
(f) an offence against s 68B – deliberately or recklessly entering a level crossing when a train or tram is approaching
(g) an offence against s 65B or rule 20 of the Road Rules – heavy vehicle exceeding speed limit by 35km/hr or more, where the speed is between 45km/hr and 70km/hr over the speed limit; or where speed is not over 145km/hr in a 110km/hr zone.
(h) an offence against rule 291 of the Road Rules – making unnecessary noise or smoke – in circumstances involving the improper use of a motor vehicle
(i) an offence against rule 297 of the Road Rules – driver not having proper control of a vehicle – in circumstances involving the improper use of a motor vehicle
(j) an offence against the Road Rules, against rule 265(3) – not ensuring that each passenger 16 years or older occupies a seating position, doesn’t occupy the same seating position as another passenger, and wears a seatbelt – or against rule 266(1) – not ensuring that passengers under 16 years of age wear a seatbelt – or against rule 268(4A) or rule 268(4B) – driving with a passenger in or on a part of a vehicle that is not designed for passengers, or is designed for the carriage of goods – in circumstances where the number of passengers in the motor vehicle exceeds the number of seats available to them in the motor vehicle
Rights of an Owner Who Was Not Driving
The court must not make an impoundment or immobilisation order or a forfeiture order if the registered operator of the motor vehicle:
- That was used in the commission of the relevant offence;
- Can prove to the court’s satisfaction that the relevant offence was committed without the knowledge or consent of the registered operator;
If a person is not the registered operator of a motor vehicle, but can prove ownership of the motor vehicle to a court exercising powers under this Part, that person may make any application or exercise any right that a registered operator may make or exercise under this part.
In other words, a registered owner can have the same rights as a registered operator.
A second attempt at applying for impoundment or forfeiture
Often a car is impounded at the time of the offence. The police then attempt to apply for a second impoundment or forfeiture after the driver is found guilty of the relevant offence.
They do this as the original impoundment is only for 30 days.
This second attempt can be for up to 4 months, or total forfeiture.
The second attempt can only be undertaken by the police after a guilty verdict.
If a motor vehicle is impounded or immobilised a person who’s interests are substantially affected may apply to the Magistrate’s Court for an Order that the motor vehicle be released on the ground that the impoundment or immobilisation is causing or will cause exceptional hardship.
However, if the offender is disqualified from obtaining a licence or the offender’s licence is suspended for a period longer than the impoundment or immobilisation the Magistrate’s Court must not consider any exceptional hardship caused to the offender. See Section 84(o)(3a) Road Safety Act 1986.
Appeal rights if an order has been made for the vehicle to be forfeited or destroyed
Section 3 of the Criminal Procedure Act 2009 defines sentence as including an order made under section 84S or section 84T of the Road Safety Act 1986.
In simple terms this means that if an order is made it is possible to appeal to the County Court. The appeal papers must be lodged at the Magistrate’s Court in the correct format.
The appeal will then be heard at the County Court before a judge alone within a few months. See section 84ZB of the Road Safety Act 1986.
If you have had your motor vehicle impounded, immobilised or forfeited, call Brendan Wilkinson Barrister and Solicitor
0438 670 198
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