Vehicle Forfeiture for Drink Driving
Since 14 March 2024, drivers stopped for drink driving have had to reckon with the possibility of losing their vehicle. Forfeiture of the car or its equivalent value is a new criminal measure introduced into the Criminal Code which, in certain circumstances, the court is required to impose. It is worth knowing when forfeiture is mandatory, when it is at the court’s discretion and what defence options exist.
Contents
- Discretionary forfeiture – when the court may order confiscation
- Mandatory forfeiture – when the court must order confiscation
- When vehicle forfeiture is excluded
- A financial penalty in lieu of forfeiture – what applies when the driver is not the owner
- How the procedure works – from the stop to auction
- Other consequences of drink driving alongside forfeiture
- Defence options
- Practical examples from our caseload
- FAQ
Discretionary Forfeiture – When the Court May Order Confiscation
Article 44b § 1 of the Criminal Code provides that the court may – but is not required to – order forfeiture of a motor vehicle upon conviction for the offence under Article 178a §§ 1 or 4 of the Criminal Code (driving while intoxicated or under the influence of narcotics), Article 178c § 1(2), Article 178d or Article 244 of the Criminal Code (where the conduct consisted of failing to comply with a driving disqualification), and in the case of a driver who caused a road accident or traffic disaster under Article 178 §§ 1 or 1a of the Criminal Code.
Discretionary forfeiture means that the court assesses all the circumstances and may decide not to impose it. Relevant factors include the alcohol concentration, the driver’s previous criminal record, the circumstances of the drive and the driver’s personal situation.
Mandatory Forfeiture – When the Court Must Order Confiscation
Article 44b § 1a of the Criminal Code introduces an obligation to order forfeiture where two conditions are met simultaneously: the driver has been convicted of one of the offences listed in that provision (Article 178a §§ 1 or 4, Article 178c § 1(2), Article 178d, or Article 178 §§ 1 or 1a of the Criminal Code), and the alcohol concentration in their body was at least 1.5 per mille in the blood or 0.75 mg/dm³ in exhaled breath, or led to such a concentration.
The provision does, however, provide an exception: the court may refrain from ordering forfeiture if an exceptional case is made out, justified by special circumstances. This is a general clause whose application depends on the court’s assessment in the specific case. Demonstrating such special circumstances – and persuading the court to apply them – is one of the main objectives of the defence in cases where the 1.5 per mille threshold has been exceeded.
When Vehicle Forfeiture Is Excluded
Article 44b § 5 of the Criminal Code sets out two situations in which the court does not order forfeiture of the vehicle itself.
The first: at the time of the offence, the vehicle was not the sole property of the driver – this covers co-ownership, leasing, hire, a company vehicle and any other situation where the driver was not the sole owner.
The second: ordering forfeiture of the vehicle is not possible or appropriate – in particular where the vehicle has been transferred, lost, destroyed or significantly damaged.
In both of these situations, forfeiture of the vehicle itself is excluded, but a financial penalty under § 6 applies in its place.
A Financial Penalty in Lieu of Forfeiture – What Applies When the Driver Is Not the Owner
Where the exclusion under Article 44b § 5(1) applies (the driver was not the sole owner of the vehicle), the court is required to impose a financial penalty payable to the State Treasury of between PLN 5,000 and PLN 500,000. The penalty replaces vehicle forfeiture and is a monetary obligation on the driver – the vehicle’s owner does not lose the car, but the driver bears a financial consequence.
Where the exclusion under Article 44b § 5(2) applies (forfeiture is not possible or appropriate), the court may – but is not required to – impose a financial penalty of the same amount.
The level of the penalty within the PLN 5,000–500,000 range is determined by the court, taking into account the circumstances of the case, including the market value of the vehicle and the driver’s financial situation.
How the Procedure Works – From the Stop to Auction
At the scene, the police may temporarily seize the vehicle for up to seven days – the car is taken to a holding facility and the vehicle registration document is also retained. Within seven days of the seizure, the prosecutor issues a decision securing the vehicle for the duration of the proceedings.
The court orders forfeiture in the judgment ending the proceedings. Once the judgment becomes final, enforcement is handled by the tax authority. The vehicle goes to public auction, and the proceeds are transferred to the Fund for Assistance to Crime Victims and Post-Penitentiary Assistance. Once the vehicle has passed into State Treasury ownership, recovering it is practically impossible.
Other Consequences of Drink Driving Alongside Forfeiture
Vehicle forfeiture or a financial penalty are measures imposed in addition to other sanctions, not instead of them. A driver convicted of the criminal offence under Article 178a of the Criminal Code must also reckon with a custodial sentence of up to three years in the basic form (higher in aggravated circumstances), a mandatory driving disqualification of at least three years, a financial contribution to the Fund for Assistance to Crime Victims, and – upon being stopped by the police – fifteen penalty points.
Defence Options
Where mandatory forfeiture under § 1a applies, the defence concentrates on two areas. The first is challenging the basis for liability – the correctness of the breathalyser test, the validity of the device’s calibration certificate and the correctness of the measurement procedure. Undermining the test result or the classification of the conduct may eliminate the basis for ordering forfeiture. The second is demonstrating that the case constitutes an “exceptional case justified by special circumstances” – this clause gives the court the possibility of refraining from mandatory forfeiture, but its application requires a persuasive justification.
Where discretionary forfeiture under § 1 applies, the defence may focus on presenting circumstances in favour of not ordering it: the driver’s clean record, their professional and family situation, a low alcohol concentration and their conduct during the proceedings.
If the driver was not the sole owner of the vehicle, forfeiture of the car itself is excluded by operation of § 5 – but a financial penalty applies, and its level can also be the subject of argument before the court.
Practical Examples from Our Caseload
A driver stopped with a reading of 1.8 per mille, with no previous criminal record, had not caused an accident. The vehicle was his sole property. Given the mandatory nature of forfeiture under Article 44b § 1a, the firm focused the defence on demonstrating special circumstances justifying departure from forfeiture: the driver was the sole breadwinner for a family with three young children, the vehicle was essential for commuting to work in an area with no public transport, and the alcohol concentration – while exceeding the threshold – resulted from underestimating the time needed to eliminate alcohol, rather than from gross recklessness. The court found that an exceptional case justified by special circumstances existed and refrained from ordering forfeiture.
A driver caused a collision while intoxicated, driving a company vehicle belonging to his employer. Since the vehicle was not the sole property of the driver, forfeiture of the car itself was excluded under Article 44b § 5(1). The court was required to impose a financial penalty. The firm presented arguments concerning the driver’s financial situation and the market value of the vehicle, applying for the penalty to be set close to the statutory minimum. The court took the arguments into account when determining the level of the penalty.
FAQ
Can the police take the car away at the roadside? Yes, the police may temporarily seize the vehicle for up to seven days. This is not yet forfeiture – it is a precautionary measure pending the proceedings. The final decision is taken by the court in its judgment.
What applies if I was driving a leased or company vehicle? Since the driver is not the sole owner of the vehicle, forfeiture of the car itself is excluded under Article 44b § 5(1). The court is instead required to impose a financial penalty payable to the State Treasury of between PLN 5,000 and PLN 500,000.
Is it possible to avoid mandatory forfeiture at 1.5 per mille? Yes. Article 44b § 1a provides an exception: the court may refrain from ordering forfeiture if an exceptional case is made out, justified by special circumstances. Applying this clause requires a persuasive justification, however, and it is not the rule – it is an exceptional remedy.
Contact Us
The vehicle forfeiture provisions are relatively new and subject to further development – which makes proper preparation of the case at an early stage of the proceedings all the more important, before the vehicle passes into State Treasury ownership.
It pays to be properly prepared: both in knowing what you can claim and in having a clear strategy.
We handle cases for drivers in Poznań and across the Wielkopolska region, with in-person and online consultations available for clients elsewhere in Poland.
Adwokat Marta Krzyżanowicz and Adwokat Michalina Koligot Law Firm “Adwokat dla Kierowców w Poznaniu”
ul. Adama Mickiewicza 18/3, 60-834 Poznań
tel. +48 795 001 536 · +48 531 335 713
kontakt@adwokatdlakierowcy.pl · www.adwokatdlakierowcy.pl
This text is for general information purposes only and does not constitute legal advice. Every case requires individual analysis.