Warrantless nonconsensual blood draw was justified by exigent circumstances following arrest for driving under the influence. An intoxicated Toure drove his truck against traffic and caused an accident. Responding officers were unable to perform field sobriety tests because Toure was resistant and combative. Without consent, officers drew Toure’s blood and test results showed a .15 percent blood alcohol level. He was found guilty of felony driving under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a)), driving with .08 or higher blood alcohol (Veh. Code, § 23153, subd. (b)), and other offenses, and sentenced to a total of 4 years, 8 months in prison. On appeal he challenged the warrantless blood draw. Held: Affirmed. One exception to the general rule that warrantless searches are presumptively unreasonable applies when exigent circumstances justify acting without a warrant. An exigent circumstance may include the imminent destruction of evidence in some circumstances. In driving under the influence cases, the natural dissipation of alcohol in the blood is not a per se exigency. (Missouri v. McNeely (2013) 133 S.Ct.1552.) However, it may support a finding of exigency in a specific case, based on the totality of the circumstances. Here, exigent circumstances justified the nonconsensual warrantless blood draw. Toure’s extreme combativeness and refusal to cooperate delayed the officers’ investigation of the accident and prevented them discovering evidence related to his intoxication. The delays involved in obtaining a warrant, “the unavailability of information relating to when defendant stopped drinking, in addition to the natural dissipation of alcohol in the blood, coupled with his violent resistance, established exigent circumstances.”
Trial court imposed an incorrect sentence for defendant’s conviction of driving under the influence causing injury. In connection with Toure’s conviction for driving under the influence, the jury found true a special allegation that he refused to submit to chemical testing. (Veh. Code, § 23612.) The court imposed a four-year sentence for this count. Toure argued on appeal that the sentence was unauthorized. The People conceded that error and the appellate court agreed. The maximum punishment for a first offense of driving under the influence causing bodily injury is three years (Veh. Code, § 23554). The special allegation does not carry any additional custodial penalty (although it may result in mandatory imprisonment), and the prosecution failed to plead and prove Toure’s prior convictions for driving under the influence. Toure’s sentence must be modified downward.
Defendant was properly convicted of violating subdivisions (a) and (b) of Vehicle Code section 23153, but the abstract of judgment must be amended to clarify that the punishment for one conviction was stayed. Toure also argued that the trial court should have stricken one of the convictions under section 23153 because they are alternate statements of the same offense. The appellate court disagreed. The offense defined by section 23153, subdivision (b) is separate and distinct from the one defined by subdivision (a). Each offense requires different elements of proof and neither is a lesser included offense of the other. A defendant may properly be convicted of both offenses. However, where a defendant is convicted of violating both subdivisions based on the same act of driving, the punishment for one of the convictions must be stayed. Here, it was incorrect for the minutes and the abstract of judgment to indicate that the sentence for count 2, which was imposed and stayed pursuant to Penal Code section 654, would also run “consecutive” to count 1.