State of Louisiana Versus Carey Agregaard, IV

STATE OF LOUISIANA NO. 22-K-82

VERSUS FIFTH CIRCUIT

CAREY AGREGAARD, IV COURT OF APPEAL

STATE OF LOUISIANA

March 18, 2022

Susan Buchholz
First Deputy Clerk

IN RE CAREY AGREGAARD, IV

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT,
PARISH OF ST CHARLES, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE
TIMOTHY S. MARCEL, DIVISION "E", NUMBER 21,535

Panel composed of Judges Susan M. Chehardy,
Jude G. Gravois, and John J. Molaison, Jr.

WRIT GRANTED, JUDGMENT VACATED, RELIEF DENIED,
REMANDED

In this writ application, relator/defendant, Carey Agregaard (“the relator”),
challenges the pre-trial seizure of his vehicle pending conviction for third offense
driving while intoxicated (“DWI”). The constitutionality of the State’s general
ability to sell and seize vehicles pursuant to La. R.S. 14:98(F), as determined by
the Louisiana Supreme Court in State v. Edwards, 00-1246 (La. 6/1/01), 787 So.2d
981, is conceded by the relator. The narrow issue before us in this application is
whether La. R.S. 14:98(F) permits such seizure and indefinite impoundment by the
St. Charles Parish Sheriff’s Office on its own motion, “pending civil forfeiture,”
prior to a disposition of the charge. For the following reasons, we grant the
relator’s writ application and vacate the trial court’s ruling denying the motion to
quash. However, on the showing made, we deny the requested relief as premature.

Facts and procedural history
The relator was arrested and charged in St. Charles Parish with third
violation of La. R.S. 14:98. In this case, subsequent to arrest, the Sheriff for St.
Charles Parish filed for, and was granted a “seizure warrant” which purportedly
gave him the authority to take the relator’s vehicle. The relator thereafter filed a
Motion To Quash Seizure Warrant And For Return of Vehicle. The motion to
quash was set for hearing on December 1, 2021. In an order issued on January 25,
2022, the trial court denied the motion to quash. The relator timely filed the instant
writ application which challenges this ruling.

22-K-82

Assignment of error
The relator argues that the trial court erred in denying his Motion To Quash
Seizure Warrant and For Return of Vehicle, by failing to apply the requirements of
La. R.S. 14:98(F), La. R.S. 15:41, and La. C.Cr.P. art. 167, and by misinterpreting
the Supreme Court’s decision in Edwards, supra.

Standard of review
A trial court’s ruling on a motion to quash should not generally be reversed
in the absence of a clear abuse of the trial court’s discretion. State v. Brooks, 16-
345 (La. App. 5 Cir. 12/28/16), 210 So.3d 514, 518. A trial court’s legal findings,
however, are subject to a de novo standard of review. State v. Smith, 99-0606, 99-
2015, 99-2019, 99-2094 (La. 7/6/00), 766 So.2d 501, 504. In this case, the trial
court’s ruling on the motion to quash is based on a legal finding and, therefore, is
subject to our de novo review.

The statutory construction of La. R.S. 14:98(F)
La. R.S. 14:3 directs that provisions of criminal statutes “shall be given a
genuine construction, according to the fair import of their words, taken in their
usual sense, in connection with the context, and with reference to the purpose of
the provision.” It is well established that the task of statutory construction begins
with an examination of the language of the statute itself. When the law is clear and
unambiguous and its application does not lead to absurd consequences, the law
shall be applied as written, and no further interpretation may be made in search of
the intent of the legislature.” State v. Barbier, 98-2923 (La. 9/8/99), 743 So.2d
1236, 1238. Here, La. R.S. 14:98(F) states:

F. (1) On a third or subsequent conviction of operating while
intoxicated pursuant to this Section, in addition to any other sentence,
the court shall order, upon motion of the prosecuting district attorney,
that the vehicle being operated by the offender at the time of the
offense be seized and impounded, and be sold at auction in the same
manner and under the same conditions as executions of writs of
seizure and sale as provided in Book V, Title II, Chapter 4 of the Code
of Civil Procedure.

The plain language of the section makes clear that the seizure of a defendant’s
vehicle, upon motion of the State, necessarily follows a conviction for certain
grades of DWI.1

Pre-seizure requirements
In applying the plain language of La. R.S. 14:98(F) to the instant facts, we
first acknowledge that relator has not been convicted for his alleged violation of
14:98, with a conviction being the first of three prerequisites identified in
subsection (F)(1).2 The second prerequisite, that the process for effecting the

1
This view is consistent with the Court’s holding in Edwards, supra at 988, “[U]nder La. R.S.14:98(D), a
vehicle is not ordered to be seized, impounded, and sold until after a defendant is convicted.” (Emphasis added.)
2
In our opinion, this makes Edwards distinguishable. The First Circuit recounted in its procedural history
of the case that before he pled guilty, the court informed defendant that a sentencing possibility, as set forth in the
statute, would be the seizure, impoundment, and sale of his vehicle. State v. Edwards, 99-0885 (La. App. 1 Cir.
2/18/00), 752 So.2d 395, 397, writ granted, 00-1246 (La. 11/17/00), 774 So.2d 151, aff’d, 00-1246 (La. 6/1/01), 787
So.2d 981.

2

seizure originate with the district attorney’s office, also has not been satisfied,
based upon our review of the writ application.

In his application for the seizure warrant, the Sheriff stated:

If this arrest should result in a conviction, pursuant to La. R.S.
14:98(F), the Court shall, upon motion of the prosecuting attorney
order the vehicle to be seized, impounded and sold at auction in the
same manner and under the same conditions as executions of writs of
seizure and sale as provided in Book V, Title II, Chapter 4 of the Code
of Civil Procedure.

Notwithstanding the fact that the motion for seizure was made by the incorrect
party and was raised prior to a conviction, a trial court’s order of seizure was
issued, satisfying the third element of (F)(1) in this case.3

State v. Edwards
In its ruling that denied the motion to quash, the trial court relied upon the
holding of State v. Edwards, supra. In that case, the defendant’s vehicle was seized
without a warrant upon his arrest for suspected DWI. He ultimately pled guilty to
third offense DWI, and he was advised at the time of his plea that seizure and sale
of his vehicle was a possible part of his sentence. The defendant reserved his right
to challenge the constitutionality of the forfeiture provision of La. R.S. 14:98(D)
following the entry of his guilty plea. His vehicle was then seized and sold as a part
of his sentence. The First Circuit held that the statutory provision permitting
seizure and sale of a vehicle when defendant was convicted of DWI, third offense,
was not unconstitutional. State v. Edwards, 99-0885 (La. App. 1 Cir. 2/18/00), 752
So. 2d 395, writ granted, 00-1246 (La. 11/17/00), 774 So. 2d 151, aff’d, 00-1246
(La. 6/1/01), 787 So.2d 981. The Louisiana Supreme Court similarly held that the
post-conviction forfeiture of the defendant’s vehicle, which he drove during the
offense for which he was convicted, was within the state’s police power under
constitutional provisions regarding ownership of private property.
As part of its analysis, the Supreme Court discussed the conditions under
which the defendant’s vehicle was seized.
Although the police did not have a warrant to seize his
automobile, the seizure is permissible when incidental to a lawful
arrest. Before being convicted of DWI, third offense, a defendant is
either tried in a court of law or he pleads guilty after a Boykin hearing.
In either scenario, an owner has sufficient opportunity to limit the
negative consequences of his vehicle being erroneously seized. Under
La. R.S.14:98(D), a vehicle is not ordered to be seized, impounded,
and sold until after a defendant is convicted. Thus, the forfeiture does
not take place until after a hearing is held. We conclude that the
seizure and impoundment of Edwards’ automobile was lawful and
passes constitutional muster.

3
The trial court’s order, dated March 23, 2021, which mistakenly refers to the Sheriff’s action in seizing
the vehicle as a “forfeiture,” states that information regarding any relevant proceedings and regulations can be found
“under 14:98 (F) and Book V, Title II, Chapter 4 of the Code of Civil Procedure.”

3

State v. Edwards at 987-88. The trial court in the instant case apparently relied
upon the above cited language in Edwards as a basis for denying the motion to
quash at issue. The trial court wrote in its judgment:

In State v. Edwards, 787 So. 2d 981 (La. 2001), the defendant
challenged the forfeiture of his vehicle upon conviction of third
offense operating a vehicle while intoxicated. The State, without a
warrant, seized and impounded the vehicle operated by Edwards
pending his conviction. The Louisiana Supreme Court found the pre-
conviction warrantless seizure and impoundment of Edwards’ vehicle
following his arrest and its forfeiture upon conviction were a [sic]
permissible exercises of police power under Louisiana Revised Statute
14:98(F).

A side by side reading of the Edwards opinion shows that the trial court correctly
recited the holding of the opinion.
Edwards is distinguishable from the instant case in one important respect:
the vehicle seizure in Edwards was deemed constitutional because it was made
incident to, or contemporaneously with, a lawful arrest. The court held that, under
those circumstances, a warrant was not necessary. In the instant case, however, the
seizure of the relator’s vehicle was not warrantless. Rather, the seizure was made
after the Sheriff utilized a procedure designated by the plain language of 14:98(F)
to be used by the prosecuting attorney after a conviction.

Upon our de novo review, we conclude that 14:98(F) and the court’s specific
holding in Edwards, do not support the trial court’s conclusion that the Sheriff’s
action was permissible. Accordingly, we grant the relator’s writ and vacate the trial
court’s denial of the motion to quash.

Relief requested
In his prayer for relief, the relator requests that upon reversing the trial
court’s motion to quash, this Court should order the return of the defendant’s
vehicle and prohibit the Sheriff’s Office from charging the relator storage fees in
connection with the seized vehicle. To do so at this juncture would be premature.
Upon the showing made on the limited record in the writ application, we find an
insufficient basis for granting this specific relief. First, there is no evidence before
us which establishes ownership of the vehicle, which is fundamental for
demonstrating the relator’s standing to seek return of the seized vehicle and his
entitlement to due process.4 Second, even if standing is demonstrated, given that
we have now vacated the order regarding the seizure initiated by the Sheriff, it falls
to either the State,5 or the Clerk of Court,6 to defend the continued impoundment of
the seized vehicle in a required contradictory hearing. We decline, however, to

4
See, for example, State v. Birdwell, 47,126 (La. App. 2 Cir. 5/16/12), 92 So.3d 1107; State v. Feeback,
434 So.2d 466, 468 (La. App. 2d Cir. 1983), and State ex rel. C.C., 03-762 (La. App. 5 Cir. 12/9/03), 864 So.2d 663,
668, overruled by In re Matter Under Investigation, 07-1853 (La. 7/1/09), 15 So.3d 972. Here, ownership was
alleged by the relator’s counsel, but no evidence was introduced on the record in support of the assertion.
5
Seizure statutes do not authorize the release of property lawfully seized which the state intends to offer as
evidence at trial. State v. Bordelon, 538 So.2d 1087, 1092 (La. App. 3d Cir.), writ denied, 546 So.2d 1211 (La.
1989).
6
See, for example, La. R.S. 15:41(C).

4

render an advisory opinion7 or postulate as to the procedural form of relief the
relator may seek individually upon remand of this matter.

Decree
Accordingly, for the foregoing reasons, the writ application in this matter is
granted, and the order of the trial court denying the motion to quash is vacated.
The relief prayed for is denied.

Gretna, Louisiana, this 18th day of March, 2022.

JJM
SMC
JGG

7
As observed generally by the Fourth Circuit in Edward v. Badie, 19-0332 (La. App. 4 Cir. 8/28/19), 282
So.3d 269, 270:
Appellate courts are prohibited from issuing advisory opinions. The Louisiana Supreme
Court provided that “[t]he jurisprudence of this Court is well settled that courts will not decide
abstract, hypothetical or moot controversies, or render advisory opinions with respect to such
controversies.” Cat’s Meow, Inc. v. City of New Orleans Through Dep’t of Fin., 98-0601, (La.
10/20/98), 720 So.2d 1186, 1193.

5

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 03/18/2022 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

22-K-82
E-NOTIFIED
29th Judicial District Court (Clerk)
Honorable Timothy S. Marcel (DISTRICT JUDGE)
Maria M. Chaisson (Relator) Louis G. Authement (Respondent)
Steven M. Mauterer (Respondent)

MAILED
Hon. Joel T. Chaisson, II (Respondent)
District Attorney
Twenty-Ninth Judicial District Court
Post Office Box 680
Hahnville, LA 70057