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Driving licence provisionally seized: what applies before the decision
Provisional seizure under section 39 FSG: understand the certificate, three day rule, authority proceedings and actual return of the licence.
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BRANDAUER Rechtsanwälte
Law firm in Salzburg
Every matter is handled by a coordinated team of lawyers, legal staff and specialists. In driving licence cases we look at the file, deadlines and commercial consequences together.
3 August 2026, Mag. Bernhard Brandauer, Rechtsanwalt
A provisional seizure during a roadside control is not automatically a withdrawal decision. It nevertheless takes immediate effect: before the licence has actually been returned, the person must not drive a motor vehicle for which a driving entitlement is required.
Keep the certificate, record the time and place of seizure and retain every authority communication. The next questions are whether withdrawal proceedings have been opened and where the licence document is held.
Provisional seizure is an immediate protective measure
Provisional seizure is an immediate protective measure
Section 39(1) FSG lists situations in which public security or traffic supervision officers must provisionally seize a licence. They include clearly visible impairment, specified alcohol levels, enforceable withdrawals and speeding offences that carry withdrawal. A certificate must state the reasons and the steps required to recover the document.
The certificate is not a withdrawal decision. It does document the immediate position. Our guide to the withdrawal decision explains the additional information that must appear in the later authority decision.
Classify the documents
Which document answers which question
The certificate, register entry and decision perform different functions.
| Document | What it proves | What it does not replace |
|---|---|---|
| Police certificate | Ground, time and recovery information for the seizure | A later withdrawal decision |
| Register entry under section 39(1a) | Seizure even without physical delivery of the card | Actual return of the licence |
| Authority decision | Withdrawal, restriction, period and appeal route | Records of the roadside control |
The complete pages, service records and later communications must be read together.
Seizure may exist even when the card was not carried
Seizure may exist even when the card was not carried
If the driver did not carry the licence, section 39(1a) FSG allows the seizure to be entered in the driving licence register. The certificate then means that the document is treated as provisionally seized with the same legal consequences. Having the card at home does not alter that entry.
Do not equate physical possession, the certificate and register status. Clarify in writing which officer made the entry and which authority received the file.
The three day rule requires an application and a status check
The three day rule requires an application and a status check
The seized licence must be submitted without delay to the local authority. Under section 39(3) FSG, that authority must return it on application within three days from seizure if no withdrawal proceedings are opened. The document therefore does not return automatically after three days.
If proceedings are opened, the later decision requires separate review. The appeal deadline guide explains service and the route to challenge a decision.
A narrow exception concerns agitation or fatigue
A narrow exception concerns agitation or fatigue
Where seizure occurred solely because of an exceptional state of agitation or fatigue, section 39(2) FSG contains a special return rule. The licence must be returned if full control of mind and body is regained before two days have elapsed from seizure. This exception must not be transferred to other grounds.
The certificate should therefore identify the recorded ground precisely. Illegible entries, several stated grounds or conflicting times should be clarified before relying on a return request.
Driving remains prohibited until actual return
Driving remains prohibited until actual return
Section 39(5) FSG links the prohibition on driving to the return of the provisionally seized licence. A telephone call, an application or the absence of a later decision does not replace actual return.
In its decision of 9 November 2016, Ra 2016/11/0117, the Administrative Court stressed that return ordinarily concerns the same document that was seized. The glossary entry on withdrawal of a driving entitlement helps distinguish the document from the entitlement.
The seizure date may start a later withdrawal period
The seizure date may start a later withdrawal period
If the licence is not returned and a withdrawal is later ordered, section 29(4) FSG requires the withdrawal period to be calculated from the day of provisional seizure. Both the seizure date and the absence of return must be documented.
Read the operative part, duration and calculation date together. The licence withdrawal focus area places those procedural stages in context.
Status check
Which document is available after the control?
The check organises the documented position and sends your answers to the firm if you request contact.
Already know you want to get in touch? Go straight to the enquiry form.
Is the certificate of provisional seizure complete?
All paths at a glance
Overview of all answers.
Open the licence withdrawal focus area →
The status of the authority proceedings is unclear.
Request the file number, responsible authority and documented status. Do not rely on an oral assumption.
Actual return is not documented.
Clarify where the licence is held and retain every return record.
The central records are organised for legal review.
Have the certificate, procedural status and return record reviewed together.
Keep these records in one chronology
Keep these records in one chronology
- complete certificate of provisional seizure
- date, time and place of the roadside control
- file number and contact details of the named authority
- proof of an application for return
- communications about opening or not opening withdrawal proceedings
- return record or evidence that the authority still holds the document
- later decision and proof of service
The initial review checklist helps organise the certificate, decision and service records.
Related guidance and checks
Review the immediate measure and decision separately
FAQ
Frequently asked questions about provisional seizure
Is the police certificate already a withdrawal decision? +
No. It records the provisional seizure. A separate authority decision must show whether and to what extent the driving entitlement is withdrawn.
Does the licence return automatically after three days? +
No. Section 39(3) FSG requires an application and applies only where no withdrawal proceedings are opened.
May I drive if the card is still in my possession? +
Not merely because of physical possession. A register entry and certificate under section 39(1a) FSG may have the same legal consequences as physical seizure.
Topics
Driving licence lawProvisional seizurePoliceWithdrawal proceedingsFSG
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