People v. Toure
232 Cal. App. 4th 1096
Cal. Ct. App.2015Background
- On Dec. 23, 2012, Madou Toure drove a semi-truck westbound for about two miles in the eastbound (oncoming) lane and struck a passenger car, injuring its two occupants.
- Bystanders removed the truck keys; when CHP arrived Toure was the sole occupant, smelled of alcohol, agitated, combative, and was physically restrained (handcuffs, spit sock, leg restraints).
- Because Toure refused chemical testing after implied-consent admonition and remained violent, officers obtained a nonconsensual warrantless blood draw at the CHP station; blood tested at .15% BAC.
- Toure was charged and convicted by jury of felony DUI causing injury (Veh. Code § 23153(a) and (b)), driving on a suspended license, and resisting an executive officer; sentenced to 4 years, 8 months.
- On appeal Toure argued: (1) the 4‑year sentence was unauthorized without pleaded/pr oved priors; (2) the warrantless forced blood draw violated the Fourth Amendment (McNeely); and (3) convictions under both § 23153(a) and (b) were improper duplicates.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 4‑year prison term for count 1 (§ 23153(a)) was authorized without pleaded/proved priors | People conceded sentence exceeded the lawful maximum for a first offense and that priors were not pleaded/proved | Trial court imposed upper-term (4 years) despite no proven prior DUI convictions | Sentence was unauthorized; case remanded for resentencing and correction of abstracts/minutes |
| Whether exigent circumstances justified warrantless, nonconsensual blood draw after refusal (post‑McNeely) | Blood draw was reasonable under totality: serious injury accident, prolonged on‑scene time, defendant’s combative conduct delayed testing and prevented officers from learning when drinking stopped; delay and restraints risked destruction/dissipation of evidence | McNeely requires case‑by‑case analysis; no categorical exigency from alcohol dissipation; Toure argued officers should have obtained a warrant or used electronic/telephonic warrant procedures | Court upheld warrantless forced draw: exigent circumstances existed under the totality of facts (accident + injuries + two‑hour delay + combative defendant + practical warrant delays) |
| Whether dual convictions under § 23153(a) and (b) (DUI and per se BAC ≥ .08 causing injury) are improper duplicative convictions | Prosecutor: both convictions are permissible because the statutes have different elements (influence vs. per se BAC) | Toure argued the counts are alternate ways of same offense and one should be stricken | Convictions under both subdivisions are proper (distinct offenses); but sentencing on both for the same act must be stayed under Penal Code § 654 (trial court stayed punishment on count 2 but clerical entries must be corrected) |
Key Cases Cited
- Missouri v. McNeely, 569 U.S. 141 (2013) (warrantless blood draws assessed under totality of circumstances; dissipation alone not categorical exigency)
- Schmerber v. California, 384 U.S. 757 (1966) (upheld nonconsensual blood draw where accident and medical treatment made obtaining a warrant impracticable)
- Arizona v. Gant, 556 U.S. 332 (2009) (warrantless searches presumptively unreasonable; exceptions narrowly construed)
- Kentucky v. King, 563 U.S. 452 (2011) (exigent‑circumstances exception discussed and applied)
- Cupp v. Murphy, 412 U.S. 291 (1973) (preventing imminent destruction of evidence can justify warrantless intrusion)
- United States v. Robinson, 414 U.S. 218 (1973) (searches incident to lawful custodial arrests and related principles)
- Ker v. California, 374 U.S. 23 (1963) (exigent‑circumstances entry and search principles)
- Skinner v. Ry. Labor Execs.’ Assn., 489 U.S. 602 (1989) (importance of prompt testing and practical problems obtaining delay‑sensitive evidence)
- People v. Glaser, 11 Cal.4th 354 (1995) (standard of review for suppression rulings: defer to factual findings, independent review of reasonableness)
- Burg v. Municipal Court, 35 Cal.3d 257 (1983) (subdivision (b) is not merely an alternate definition and is distinct from influence‑based offense)
- People v. Thompson, 38 Cal.4th 811 (2006) (discusses promptness in obtaining blood/breath evidence)
- People v. Duarte, 161 Cal.App.3d 438 (1984) (dual convictions under DUI statutes possible but punishment may be stayed under § 654)
- People v. Subramani, 173 Cal.App.3d 1106 (1985) (§ 23153(a) and (b) are separate offenses; dual convictions permissible)