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How to defend the impoundment of your motor vehicle

Introduction

If your vehicle is impounded, you have a right of appeal to the Police and from there to the District Court (see below).

Situations when Police must seize vehicles

The Police have authority under the LAND TRANSPORT ACT 1998 to impound motor vehicles in certain cases.

A Police officer must seize and impound a motor vehicle for 28 days (or authorise someone else to do so) if the officer believes on reasonable grounds that the driver drove the vehicle on the road while

  • the driver was disqualified from holding or obtaining a driver's licence, or
  • the driver's licence was suspended or revoked, or
  • the driver did not hold a licence, having previously been forbidden to drive because he or she was an unlicensed driver or because the licence had expired

The Police must also seize and impound a driver's car if

  • the driver's breath-alcohol level was more than 400 micrograms of alcohol per litre of breath, or their blood-alcohol level was more than 80 milligrams of alcohol per 100 millilitres of blood, or they failed or refused to undergo a blood test when legally required to do so, and
  • the driver had already been convicted of two or more alcohol- or drug-related driving offences within the last four years

Police may impound vehicles in boy racing cases

A Police officer may seize and impound a motor vehicle for 28 days if the officer believes on reasonable grounds that a person

  • unlawfully operated the vehicle in a race, or in an unnecessary exhibition of speed or acceleration, or
  • without a reasonable excuse, unlawfully caused the vehicle to undergo sustained loss of traction

The officer must issue a notice directing that the vehicle is not to be driven on a road, subject to any exceptions that the officer includes in the notice.

Impounding officer must issue a notice

If the officer impounds the car, he or she must complete a notice that acknowledges that the vehicle has been seized and impounded, and that includes the following information:

  • the driver's name and address
  • the vehicle's year, make, registration plate details, and vehicle inspection number
  • in the case of a boy racing offence, the date and time of the alleged offence (see above)
  • the date and time when the vehicle was seized
  • the place where the vehicle is to be impounded
  • an outline of the owner's rights of appeal (see below)

Unless the driver has left the scene, the Police officer must give the driver a copy of this notice. If the driver is not the registered owner, the officer must give the owner a copy of the notice if the owner is present or, if the owner is not present, send them a copy as soon as practicable. The officer must also ensure that the storage provider receives a copy.

What about my personal property in the car?

Any personal property that is in the car must be released to you, on request, when the vehicle is seized, provided you can supply satisfactory evidence that you were lawfully entitled to the vehicle or the property immediately before it was impounded. (This does not include any property attached to or used in connection with the operation of the vehicle.)

Storage

Once the vehicle is impounded it will be stored where the Police direct.

The owner of the vehicle is liable to pay any fees and charges associated with towage and storage of the vehicle.

A storage provider is entitled to release a vehicle only as authorised under the Act, and must release the vehicle to the owner (or an authorised person) once release is authorised.

When will the vehicle be released?

If the Police decide that proceedings will not be taken against the driver, or if proceedings are taken and the driver is acquitted, then the vehicle must be released.

Further, if the car was impounded on drink-driving grounds (see above under "Situations when Police must seize vehicles"), the car must be released to the owner if a blood test shows the driver's blood-alcohol level was 80 milligrams or less per 100 millilitres of blood.

Once the 28-day period has expired, the registered owner or a person whom the owner authorises is entitled to remove the vehicle from storage, provided he or she can show the storage provider:

  • proof of identity, and
  • either proof of ownership of the vehicle or the owner's copy of the notice acknowledging impoundment

How can I defend the impoundment?

You can defend the impoundment of your vehicle by exercising your rights of appeal under the LAND TRANSPORT ACT 1998.

The owner of a motor vehicle that has been impounded may appeal to the Police on the following grounds:

  • that the vehicle had been stolen or converted at the time it was impounded
  • that the Police officer didn't have the necessary reasonable grounds of belief, or did not comply with the notice requirements
  • that the owner didn't know, and couldn't reasonably have been expected to know, that the driver was not permitted to drive the vehicle
  • that the owner took all reasonable steps to stop the driver driving the vehicle
  • that the driver drove in a serious medical emergency (including imminent childbirth)

Your appeal must be in the form of a statutory declaration.

If they are satisfied that there has been an injustice the Police must direct the vehicle to be released immediately to the owner (or an authorised person).

The Police must determine the appeal within:

  • five working days, or
  • two working days if the ground of appeal is that the vehicle was stolen

Can I appeal the Police's decision?

If your appeal to the Police is unsuccessful then you may appeal to the District Court. However, this must be on the same grounds as those that apply to appeals to the Police; the court is not permitted to consider any other grounds. After it has heard your appeal, the court must either:

  • direct the vehicle to be released immediately to the owner (or an authorised person), or
  • dismiss the appeal
Cautionary notes
  • A Police officer has no authority to seize or impound a motor vehicle if there is good cause to suspect that the vehicle is stolen, has been converted, is a write-off, or has been severely damaged. Similarly the Police have no power to seize a trailer or other non-powered vehicle being towed by or attached to the motor vehicle.
  • You should be aware that if you decide to appeal against an impoundment to the District Court, it is highly likely that the 28-day impounding period will already have expired by the time court hearing date arrives (it may take up to six weeks for a hearing date). Therefore if you wish to have the car released as soon as possible, the best way of achieving this is through an appeal to the Police. In order to maximise your chances of success it is recommended that you seek legal advice to help in preparing and delivering this appeal.
  • Both the Police and the District Court may choose not to hear an appeal if they are satisfied that it is frivolous or vexatious.




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