California Court of Appeals, Fourth District, Second Division
APPEAL from the Superior Court of San Bernardino County, No. FBA1200751 John M. Tomberlin, Judge.
[Copyrighted Material Omitted]
Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles Ragland, Scott C. Taylor, and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
RAMIREZ, P. J.
Madou Toure, the defendant, drove his semitruck westbound on State Route 58, traveling for some distance in the eastbound lane of oncoming traffic before colliding head-on with an automobile carrying two occupants. Throughout the investigation of the incident by the California Highway Patrol (CHP), defendant was violent and combative, continuing his resistance even at the CHP station. Defendant refused to consent to blood alcohol testing after being admonished of the implied consent provisions of the Vehicle Code, so a nonconsensual warrantless blood draw was performed while defendant was restrained. After a jury trial, defendant was convicted of felony driving under the influence of alcohol causing injury (Veh. Code,
§ 23153, subds. (a), (b)),  driving on a suspended license (§ 14601.2, subd. (a)), and resisting an executive officer (Pen. Code, § 69). He was sentenced to four years in state prison and appealed.
On appeal, defendant argues (1) his four year state prison sentence was unauthorized in the absence of pleading or proof of prior drunk driving convictions; (2) his felony drunk driving convictions must be reversed because the blood alcohol evidence was obtained without a warrant, exigent circumstances, or his consent, in violation of his Fourth Amendment rights; and (3) his convictions under both subdivisions (a) and (b) of section 23153 were improper. The People concede that the court imposed the incorrect sentence for driving under the influence with injury. We modify the sentence but otherwise affirm.
On December 23, 2012, at approximately 8:30 or 9:00 p.m., Alece Collins was driving in her automobile behind a Penske truck and a tractor-trailer semitruck westbound on State Route 58 near Highway 395, in San Bernardino County. The tractor trailer swerved several times over the lane division line, into the eastbound lane of travel. Then it continued for approximately two miles in the eastbound lane of oncoming traffic, eventually striking a gray or silver passenger car. Other cars in the eastbound lane swerved and went off the road to avoid the tractor-trailer, which continued westbound in the eastbound lane.
The semitruck eventually stopped a few thousand feet west of the site of the collision, on the right side of the road, which was on the north side of the westbound lane. The Penske truck pulled in front of the semitruck and stopped, while Ms. Collins pulled in behind the semitruck. The driver of the Penske truck called 9-1-1. The defendant exited the semitruck, mumbling. Ms. Collins and two of the occupants of her vehicle exited her vehicle. Ms. Collins took a BB gun with her, and one of her companions checked the interior of the cab of the semitruck for other occupants, but found none. One of Ms. Collins's companions took the keys out of the ignition of the semitruck so defendant could not drive off again, because defendant had said something like, “I’m out of here, ” and had gotten back into the cab of the truck. The interior of the truck smelled of alcohol so Ms. Collins assumed defendant was intoxicated.
After taking the keys to the semitruck, Ms. Collins and her companions drove to the location of the gray car that had been struck by the semitruck, to
check on the welfare of its occupants. In the meantime, a CHP officer arrived at the location of the gray car in response to the dispatches of a wrong-way tractor trailer, and the later report of the collision. The officers stopped first at the location of the gray car, which had been struck by defendant’s vehicle, where the vehicle’s two occupants complained of neck and back pain. The gray car had damage to the driver’s door and part of the driver’s side tire was smashed in. At some point, the person who had defendant’s truck keys turned them over to one of the officers.
Because the ambulance was already en route, the CHP officers then drove a few thousand feet west, to the location where the semitruck was stopped behind the Penske moving truck. Defendant was the sole occupant of the semitruck and was seated in the driver’s seat with his hands on the steering wheel when the officers approached. The keys to the semitruck were not in the ignition and were not found in defendant’s possession. There was damage to the left front wheel of the semitruck and the tire was completely gone. Additionally, there was damage to the driver’s side step. The asphalt ...