What the Law states - Vehicle Impoundment Order-Type 1 Offences
Section 85 of the Police Powers and Responsibilities Act Queensland states:
(1) This section applies if a motor vehicle has been impounded for a type 1 vehicle related offence and, in addition to the initiating impoundment offence-
(a) the driver of the motor vehicle has previously been charged with having committed a type 1 vehicle related offence on 1 previous occasion within the relevant period and the charge has not been decided before the initiating impoundment; or
(b) the driver of the motor vehicle has previously been found guilty of a type 1 vehicle related offence committed on 1 previous occasion within the relevant period.
Note- For vehicle related offences, the offences do not have to be committed using the same vehicle.
(2) Within 48 hours after charging the person with the initiating impoundment offence, a police officer must apply in the approved form for an order that the motor vehicle be held at a holding yard for a period of not more than 3 months (impounding order).
(3) The application must be made in relation to 2 type 1 vehicle related offences consisting of-
(a) any type 1 vehicle related offence the circumstances of which apply to the driver under subsection (1)(a) or (b); and
(b) the initiating impoundment offence.
Note that a motor vehicle includes a motorbike.
What the Police must prove - Vehicle Impoundment Order-Type 1 Offences
In order for the Police to obtain the order at Court, they must prove each of the following matters on the balance of probabilities:
The accused:
(1) has been charged with one of the following:
(a) Dangerous operation of a motor vehicle under s328A of the Criminal Code;
(b) Carless driving of a motor vehicle under s83 of the Transport Operations (Road Use Management) Act;
(c) Racing or speed trial on a road under s85 of the Transport Operations (Road Use Management) Act; or
(d) Making unnecessary noise or smoke under s291 of the Transport Operations (Road Use Management - Road Rules) Regulation; AND
(2) Had their vehicle impounded for the initiating period of 48 hours as a result of that charged; AND
(3) Has in the 3 years before the new charge for which their vehicle has now been impounded been:
(a) charged with one other Type 1 offence as listed (a) to (d) above which is yet to be decided in the courts; OR
(b) found guilty of one other Type 1 offence as listed (a) to (d) above
It will be necessary for the Police in every offence to prove that the accused was the person who committed the offence. Click here to learn more about identification evidence.
Maximum Penalty - Vehicle Impoundment Order-Type 1 Offences
Maximum Impoundment period - 3 months.
The driver will also be liable for any costs involved in removing and keeping the vehicle and for the costs of impoundment for each day the driver fails to remove the car after the period of impoundment ends.
If the driver is not the owner, the owner will not be responsible for impoundment costs for 2 business days after the owner receives the impoundment notice. However, the owner will become liable to pay for costs of impounded for each day thereafter.
If the vehicle is not removed by the owner within 30 days the vehicle will considered forfeited to the state and may be sold. If the owner is known, the owner will receive the proceeds of the sale after the costs of impoundment, moving and sale of the vehicle have been accounted for.
Which court will hear the matter - Vehicle Impoundment Order-Type 1 Offences
The application for an Impoundment Order will be heard in the Magistrates Court.
Possible Defences - Vehicle Impoundment Order-Type 1 Offences
1. It is a defence to prove that the current offence occurred without the knowledge and consent of the owner of the vehicle.
2. While not exactly a defence, if the accused can show forfeiture would cause him or her severe financial or physical hardship, the Magistrate may impose an order of community service in the alternative to impoundment.
Criminal Law Article written by Bill Potts (Queensland criminal defence lawyer who is experienced in Vehicle Impoundment matters)
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