Innocent Car Owners Punished For Reckless Driving

In 2021, the Danish Parliament adopted the so‑called "reckless driving package" - a tightening of existing legislation. The aim is to combat high-speed and dangerous driving by imposing stricter penalties. A particularly controversial element of the law is that police must seize and confiscate vehicles used for reckless driving.

Since 2021, according to Danish Police, motorists in Denmark have been charged with reckless driving more than 5,400 times. The confiscated vehicles are typically sold at auction, and since 2021 such sales have generated more than DKK 84 million.

The law makes no distinction between whether the vehicle is owned by the offender or by a third party. As a result, the police confiscate cars belonging to people who have not committed any crime - something researchers from the Faculty of Law at the University of Copenhagen consider problematic.

"It is very rare that I come across a legal issue where I can feel deep down that something is wrong," says Jens Elo Rytter, Professor at the Centre for Public Regulation and Administration.

"The fundamental problem is that under this legislation, situations can easily arise where one person has done something wrong and others end up paying the price. For a lawyer - and for most people - that offends the sense of justice," he says.

Hardest on private individuals

Jens Elo Rytter, a Professor of constitutional law, together with lawyer and Associate Professor Mikael Kenno Fogde, points to a number of legal challenges in the current legislation.

A third party risks having their vehicle seized and confiscated if it has been used for reckless driving. This also applies to leased vehicles or cars lent by a dealership for test drives. However, while leasing companies and dealers can generally protect themselves through contracts requiring customers to assume liability, the situation is rarely as straightforward when private individuals lend out their cars.

"Our article focuses on private loans - for example when someone lends their car to a family member or a friend who is then caught driving recklessly. In many situations, the owner has no way of foreseeing that lending out the car will lead to reckless driving. And typically, they will not have legal safeguards in place like a dealer or leasing company would," says Jens Elo Rytter.

A simple solution

If your car has been confiscated, you could simply buy it back at auction when the authorities sell it. Something several owners have done, according to Jens Elo Rytter.

"To me, that clearly illustrates that something is wrong with the law. If the point really is to take the car away from the owner, it makes little sense that they can just buy it back," he says.

He also argues that there is a degree of arbitrariness in focusing on the vehicle as part of the penalty:

"Someone can commit reckless driving in an old car worth 5,000 kroner or in a car worth several million. It is the same offence, but the penalty varies enormously," he says.

The article "Confiscation of third-party vehicles following reckless driving - legal status and relation to property rights" has been published in the journal Juristen.

The authors are Professor Jens Elo Rytter and lawyer and associate professor Mikael Kenno Fogde, both from the Faculty of Law at the University of Copenhagen.

Previously, police could only seize a vehicle if the owner was the one driving recklessly. According to Rytter, political frustration arose because drivers in leased vehicles were effectively exempt. This led to the tightening of the law.

"I understand the reasoning behind the tightening, but I question the strong focus on the vehicle in the first place. There is a much simpler solution. Instead of targeting the vehicle - with the risk of affecting an innocent third party - you could impose higher fines on the driver if the goal is to increase deterrence," he says.

Potential conflict with constitutional rights

Beyond concerns about fairness, Jens Elo Rytter also believes the legislation may conflict with Section 73 of the Danish Constitution on property rights, as well as provisions in the EU Charter of Fundamental Rights and the European Convention on Human Rights.

"The essence of our criticism is that there is no good reason to confiscate the tool used to commit a crime when it does not belong to the offender and has no value for the investigation. How can such an intrusion, which may be financially burdensome for an innocent owner, be justified?" he asks.

According to the researchers, confiscating a third party's vehicle can reasonably be compared to expropriation.

"In other words, the state takes private property without sufficiently strong grounds to do so without compensation. In almost all other cases, authorities must pay compensation when private property is expropriated - and that was never the intention of this legislation," he says.

The researchers therefore propose simplifying the legislation by abolishing confiscation as a sanction and instead increasing fines.

"We want to stress that we are not arguing that reckless driving should not be punished severely. It already is, with prison sentences and driving bans. These are serious penalties for a serious offence. But confiscating the vehicle - even when it is not owned by the driver - raises legal issues that deserve attention," says Jens Elo Rytter.