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 someone who has committed any of the following (prescribed) offences:

[See Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) s 3 (interpretation) and Part 2 (Clamping and Impounding of Vehicles), and Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2022 (SA) reg 5 (definition of prescribed offence).]

If a person has been reported for one of the above offences and advised of that fact, or charged with or arrested in relation to one of the above offences, police may clamp or impound either [s 5(1)]:

Police may not impound or clamp a motor vehicle if the person is given an expiation notice, unless the notice is withdrawn or the person elects to be prosecuted [s 5(2)]. See also Expiation.

How can a car be seized?

A motor 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 [s 16(3)], including:

How long will my vehicle remain impounded?

A vehicle can generally be clamped or impounded for a period of 28 days [s 6]. The Commissioner of Police may apply to the Magistrates Court for an extension up to a maximum of 90 days [s 7, Uniform Special Statutory Rules 2022 (SA) Chapter 6 Part 7].

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 Commissioner of Police 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)].

Can a vehicle be released if its impounding will cause financial hardship?

Under section 8(2a), the Commissioner of Police can order the release of a motor vehicle if it can be shown that severe financial or physical hardship will be suffered by someone other than the alleged offender if the vehicle remains impounded. Such an application must be made by the affected person and not by the offender.

If the vehicle 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 inform 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, during business hours, apply for the vehicle to be released [s 9]. The vehicle must be released as soon as reasonably practicable after the application has been made, as long as the relevant fees have been paid. The impounding authority is not obliged to release a vehicle outside of ordinary business hours [s 9(11)]. The vehicle can be released to the registered owner, a person authorised by the registered owner, or a person legally entitled to possession of the vehicle.

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 Commissioner of Police has discretion to release a motor vehicle without payment of the fees if an exception outlined in s 9(2) applies. For the current fees, 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 clamping and impound fees [see s 9(7)-(9)]. Such an application to the Commissioner of Police must be made within 7 business days of the impounding of the motor vehicle.

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 [s 9(5)].

When can a court order a vehicle to be impounded for a longer period?

Where a person 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 s 12:

Any application for forfeiture must be made before the finalisation of the related criminal proceedings.

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 as well [see s 12(2)].

The court must, on request, hear from persons affected by the order and may 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 [see s 12(3)].

Can a court refuse to make an order?

A court may decline to make an order if satisfied of any of the following [s 13]:

If the court declines to make an impounding or forfeiture order, it may order the convicted person to perform up to 240 hours of community service [s 13(2)].

Can I be prevented from selling my car once it has been released from impoundment?

In some circumstances, the Commissioner of Police may issue a notice 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 10 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 for 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(6), (7)].

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 generally 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 [s 20(5)]. This also applies if the vehicle has been offered for sale and was not sold.

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 [s 19].

Offences

It is an offence to:

with a maximum penalty of a fine of $2,500 or imprisonment for 6 months.