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Criminal Law News VIC

Cars impounded for hoon offences can sometimes be released

Anti-hoon laws are about making roads safer and reducing road trauma.

The anti-hoon laws provide that if police have reasonable grounds for believing a driver has committed a hoon-related offence, they have the power to seize that vehicle and impound or immobilise it for 30 days (increased from 48 hours).

Hoon offences are traffic offences that allow the police or a magistrate to impound or immobilize a motor vehicle. They are often regarded as anti-social driving offences. Anti-hoon laws were originally enacted to target drivers who intentionally skidded, squealed tires, smoked their tires, made donuts, or engaged in similar annoying driving behaviour.

Those behaviours and certain others that involve annoying or moderately dangerous behaviour are now classified as Tier 2 offences. A 2010 amendment to the anti-hoon law classified more dangerous traffic violations (including repeat offences of unlicensed driving and driving with an excessive blood alcohol concentration) as Tier 1 offences.

The police can impound or immobilize a vehicle for 30 days if they have reasonable cause to believe it was use to commit a hoon offence. In addition to the normal penalties associated with traffic offences, the Magistrate’s Court can impose an additional (3 month maximum) period of impoundment or immobilization, and in some cases of repeated hoon offences, can order forfeiture of the vehicle.

Whether impoundment or immobilization is imposed by the police or considered by the court as a punishment, the vehicle’s owner or registered operator has a right to ask the court to release the vehicle if the impoundment, immobilization, or forfeiture would cause an exceptional hardship.

What is an exceptional hardship?

The Road Safety Act does not define the term “exceptional hardship.” The meaning must therefore be determined on a case-by-case basis and each magistrate is likely to have his or her unique understanding of the term. All magistrates, however, must consider the term in light of the law’s purpose, which is to keep vehicles out of the hands of hoons for a designated period of time. That is an intended hardship.

One court noted that an “exceptional” hardship must be greater than the ordinary hardship that the law intends. It therefore will not be easy for a driver who has been found guilty of a hoon offence to convince the court to release his or her vehicle.

An understanding of the phrase “exceptional hardship” might be found in cases that consider “exceptional circumstances” as that term is used in sentencing law. At least one court concluded that the two phrases have a similar, if not identical, meaning.

In the leading case defining “exceptional circumstances” in Victoria, a judge relying on the Oxford English Dictionary considered the possibility that “exceptional” means “any variation from the norm.” At the same time, if the purpose of legislation is to limit the circumstances under which relief will be granted, the judge suggested that an exceptional circumstance might be one that rarely occurs.

As a practical matter, the meaning of “exceptional” probably falls somewhere in between the two extremes of “atypical” and “rare.” Declining to give the term “exceptional” a precise definition, the judge concluded that what is “exceptional” depends on the circumstances. In other words, the meaning of “exceptional” in any particular case is up to the judge.

Examples of Exceptional Hardship

Here are some arguments that might persuade a court that an exceptional hardship justifies release of a vehicle:

  • The vehicle is used by other members of the family, not just the driver who committed the offence, and it is the only vehicle available for those family members to meet their transportation needs
  • The lack of public transportation for people living in a rural area
  • The need to use the vehicle to take children to school when no other transportation is available
  • It is the only vehicle available to a pregnant woman who is likely to give birth during the period of impoundment or immobilization
  • It is the only vehicle available to a serious health condition who depends upon it for transportation to a clinic or hospital to receive treatment
  • A family member who was not the offending driver needs the vehicle for employment
  • The offending driver needs the vehicle for employment, but only if —
  • The vehicle is essential (not merely convenient) to the driver’s employment;
  • No other transportation is available; and
  • The driver has tried without success to arrange for another person to take the driver to work.

If the offending driver is claiming a hardship to himself or herself, the court cannot release the vehicle if that driver’s licence has been suspended. If the court is making the vehicle available for the use of another family member, the court can require that person to provide an assurance that the offending driver will not be allowed to use the vehicle.

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