When can a car be clamped, seized or impounded?

Under the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) ('the Act') police can clamp, impound, seize and order the forfeiture of motor vehicles used by persons who have committed the following (prescribed) offences:

* does not include a first offence.

See section 3 (interpretation) and Part 2 (Clamping and Impounding of Vehicles); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2022 (SA) reg 5 (definition of prescribed 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 [s 5(1)]:

The above does not apply where an expiation notice has been issued, unless the notice is withdrawn or the person elects to be prosecuted (see Expiation) [see s 5(2)].

How can a car be seized?

A vehicle can be seized from [s 16(1)]:

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 [s 16(3)]:

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, Uniform Special Statutory Rules 2022 (SA) Chapter 6 Part 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 lawfully 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 vehicle 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 (and during ordinary business hours) the owner must apply for the vehicle to be released. The vehicle must be released as soon as is reasonably practicable after the application has been made, as long as the relevant fees have been paid. Under section 9(11) of the Act, 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, a person authorised by the registered owner, or a person legally entitled to possession of the vehicle.

[S 9(1)]

Will I have to pay a clamping and impounding fee?

The clamping and impounding fees are generally payable up front, at the time of the vehicle's release. The Police Commissioner has discretion to release a motor vehicle without payment of the fees if the exceptions outlined in s 9(2) of the Act are made out. For details of fees payable see the South Australia Police Fee Schedule website.

In certain circumstances, offenders can request to have their vehicle destroyed for a lower fee, instead of paying the higher amount for clamping and impound fees [see further ss 9(7)-(9)]. Such an application to the Police Commissioner must be made within 7 business days of the impounding of the motor vehicle in question.

Can these fees be refunded?

If the alleged offender is found not guilty of a prescribed offence, or the charge of the prescribed offence has been withdrawn or proceedings have been discontinued, then the fee paid will be reimbursed to the person.

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:

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).

[S 12]

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 [see s 12(2)].

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 [see s 12(3)].

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:

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.

[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 [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 $2,500 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):

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 section 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].

Offences

It is an offence to hinder or obstruct a police officer from exercising their powers under this Act [s 18(1)].

Maximum penalty: $2,500 fine or imprisonment of 6 months

It is also an offence to interfere with wheel clamps [s 18(2)].

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 [s 18(3)].

Maximum penalty: $2,500 fine or imprisonment of 6 months

Fees

For details of fees payable in relation to impounding, clamping and forfeiture see the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) (Fees) Notice issued from time to time.