|To apply for early release of a clamped or impounded vehicle visit the SA Police website and access the online Early Release Application form|
When can a car be clamped, seized or impounded?
Under the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) police can clamp, impound, seize and order the forfeiture of motor vehicles used by persons who have committed the following (prescribed) offences:
- Causing death or harm by dangerous use of a motor vehicle [Criminal Law Consolidation Act 1935 (SA) s 19A]
- Leaving accident scene after causing death or harm by careless use of motor vehicle [Criminal Law Consolidation Act 1935 (SA) s 19AB]
- Dangerous driving to escape a police pursuit [Criminal Law Consolidation Act 1935 (SA) s 19AC]
- Misuse of a motor vehicle [Road Traffic Act 1961(SA) s 44B]
- Aggravated offence of drive without due care [Road Traffic Act 1961(SA) s 45]
- Excessive speed [Road Traffic Act 1961 (SA) s 45A]
- Reckless and dangerous driving [Road Traffic Act 1961 s 46]
- Driving under the influence [Road Traffic Act 1961(SA) s 47]
- Driving while having a prescribed concentration of alcohol in blood [Road Traffic Act 1961 (SA) s 47B]
- Driving while having a prescribed drug in oral fluid or blood [Road Traffic Act 1961(SA) s 47BA]
- Emitting excessive noise from a motor vehicle [ Summary Offences Act 1953 (SA) s 54]
- Marking graffiti [Graffiti Control Act 2001 s 9]
- Arson and other property damage – if the offence involves marking graffiti [Criminal Law Consolidation Act 1935 (SA) s 85]
- Driving unlicensed never having held a licence[ Motor Vehicles Act 1959 (SA) s 74(2)]
- Driving whilst suspended [Motor Vehicles Act 1959 (SA) s 91(5)]
- Driving unregistered [Motor Vehicles Act 1959 (SA) s 9] *
- Driving uninsured [Motor Vehicles Act 1959 (SA) s 102] *
* does not include a first offence
Police can only exercise the power to clamp, seize and impound vehicles if the person driving or operating the vehicle at the time of the offence:
- is to be, or has been, reported for the offence and has been advised of that fact; or
- has been charged with, or arrested in relation to, the offence.
The above does not apply where an expiation notice has been issued, unless the notice is withdrawn or the person elects to be prosecuted (see Expiation).
How can a car be seized?
A vehicle can be seized from:
- a public place (this includes carparks, roads, footpaths and alleys); or
- a place occupied by a person who has committed, or is alleged to have committed, an impounding offence; or
- any other place:
- with the consent of the owner or occupier of the place, or
- if it can be seen that the motor vehicle is at the place, or
- under the authority of a warrant issued by a magistrate.
The impounding authority (police officer or court sheriff) is empowered to do anything reasonably necessary for the purpose of seizing and moving the vehicle.
Under the legislation they can do any of the following to seize a motor vehicle:
- Require a vehicle to stop
- Enter or search premises occupied by an offender or any other place where the car is located and, using reasonable force, break into or open a garage or other structure where a vehicle may be stored
- Remove, dismantle or neutralise a locking device (or other feature of vehicle)
- Start the car by other means where a driver refuses to hand over the keys to the vehicle
- Temporarily affix clamps or other locking devices to a motor vehicle to secure it until it can be seized and moved
How long will my vehicle remain impounded?
A vehicle can be clamped or impounded for a period of 28 days, however, applications can be made by the Police Commissioner to the Magistrates Court for an extension [ss 6, 7]. If an extension is granted it can be for no more than 90 days.
What if my car was stolen and has been impounded as a result of someone else’s actions?
If the Commissioner of Police is satisfied that the motor vehicle was, at the time of the offence, stolen or not lawfullly possessed then it must be released [s 8(2)].
What if my car was used by a friend or family member to commit an offence without my knowledge?
The Police Commissioner has the authority to release a clamped or impounded vehicle if satisfied that the offence was committed without the owner’s knowledge or consent [s 8(2a)].
Are there provisions to allow for a vehice to be released if its impounding will cause financial hardship?
Under section 8(2a) the Police Commissioner can order the release of a motor vehicle if it can be established that severe financial or physical hardship will be suffered by someone other than the offender if the vehicle remains impounded. Such an application must be made by the affected person and not by the offender.
If the car is registered in someone else’s name, will they be contacted?
When a vehicle is impounded or clamped the Commissioner of Police must make reasonable attempts to contact all current registered owners (or, if there are no current registered owners, the last registered owners of the vehicle) to advise them of the action taken and to provide any necessary information in relation to securing the vehicle’s release [s 5(6)].
What happens after the impounding period has ended?
At the end of the clamping/impounding period the owner must apply for the vehicle to be released and the vehicle must be released as soon as is reasonably practicable after the application has been made. Under s 8 the police or relevant authority are not obliged to release a vehicle outside of ordinary business hours.
The vehicle can be released either to the registered owner or to a person authorised by the registered owner.
[Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) s 8(1)]
Will I have to pay an impounding fee?
These are payable only after a person has been convicted by a court for a prescribed offence [s 9]. For details of fees payable see penalty summary.
Under what circumstances can a court make an order for a vehicle to be impounded for a longer period?
Where the person charged has been found guilty of or expiated one other prescribed offence within 10 years of the date of the impounding offence, and there is no forfeiture order against the vehicle, the court can make an order to impound for a period not greater than 6 months [s 12].
When can a court make an order for a vehicle to be forfeited?
A court can make an order for forfeiture under the following circumstances:
- Where a forfeiture offence has been committed, or
- Where the person charged has been found guilty of or expiated at least one other prescribed offence in the 12 months before the date of the current offence, or
- Where the person charged has been found guilty of or expiated at least two other prescribed offences within 10 years of the date of the current offence
Any application for forfeiture must be made before the finalisation of the related proceedings (i.e. the offence in respect of which an application for forfeiture has been made).
Will I have the opportunity to explain how the order will affect me?
Where an application is made to the Court for an order to impound or forfeit a vehicle notice of the application must be give to each registered owner of the vehicle and, if the prosecution is aware that any other person has a claim to ownership of the vehicle or is likely to suffer financial or physical hardship as a result of the order, to them also.
In addition the court must hear representations from persons affected by the order and has the power to make any orders it considers necessary to deal with this, including deciding not to make an order where it can be shown to cause severe financial or physical hardship or where it would significantly affect the rights of a credit provider.
Are there any circumstances where a court can refuse to make an order?
A court can decline to make an order if it is satisfied that:
- it would cause severe financial or physical hardship; or
- the offence occurred without the knowledge or consent of any person who was an owner of the motor vehicle at the time of the offence; or
- the making of the order would affect the rights of a credit provider; or
- the vehicle has since been sold to a genuine purchaser who did not have reason to know or suspect the motor vehicle was subject to an order for forfeiture
If the court declines to make the order on the basis of hardship it may order the person to perform up to 240 hours of community service in the alternative.
[Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 ss 12(1), 13]
Can I be prevented from selling my car once it has been released from impoundment?
In some circumstances a notice may be issued by the Police Commissioner prohibiting the sale or disposal of the motor vehicle until proceedings relating to the impounding offence have been finalised [see Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) s 14]. This type of notice may be issued to someone who has committed at least one relevant traffic offence in the last ten years.
Where a notice is served under this section, the owner must not sell or otherwise dispose of the motor vehicle. It is a criminal offence punishable by a maximum penalty of $2500 or imprisonment of 6 months.
The Court may also require a person who sells or disposes of a vehicle in breach of the notice to pay an amount equivalent to a reasonable estimate of the value of the vehicle to the Victims of Crime Fund [see s 14(4)].
When can a car be sold or otherwise disposed of by the police?
A motor vehicle can be disposed of (by sale or other means):
- if it has been impounded and has not been collected within two months of its release
- if it is the subject of a forfeiture order
Where a motor vehicle is sold it will be by public auction or public tender [s 20(4)].
If there are reasonable grounds to believe that the vehicle has no monetary value or that the proceeds of the sale would be unlikely to exceed the costs of the sale, the vehicle can be otherwise disposed of. This also applies if the vehicle has been offered for sale and was not sold.
In addition, under s 20(5), the Police Commissioner can direct that a motor vehicle be destroyed or disposed of in some other manner, however it is not clear under what circumstances this would occur.
[see Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) s 20]
Is compensation payable for loss suffered as a result of the seizure, impounding or forfeiture of a motor vehicle?
No compensation is payable by the Crown unless the impounding authority did not act in good faith, or acted outside its powers [see Summary Offences Act 1953 (SA) s 66H].
It is an offence to hinder or obstruct a police officer from exercising their powers under this Act.
Maximum penalty: $2,500 fine or imprisonment of 6 months
It is also an offence to interfere with wheel clamps.
Maximum penalty: $2,500 fine or imprisonment of 6 months
It is a further offence to interfere with an impounded motor vehicle whilst in the custody of a relevant authority.
Maximum penalty: $2,500 fine or imprisonment of 6 months
For details of fees payable in relation to impounding, clamping and forfeiture see penalty summary.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.