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William Karl Kirk
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William Kirk’s Answers

35 total

  • Can I be charged with a DUI if I never drove, because I fell asleep in my car after drinking too much?

    I went into my car to call a taxi, but before I could, I threw up, and after that, fell asleep. I was NEVER planning on driving.

    William’s Answer

    In some States, Washington for example, you may be able to avail yourself of the affirmative defense of "safely off the roadway." Whether Texas recognizes that is a question for a top notch Texas DUI attorney. However, the purpose of this affirmative defense is to encourage people to do exactly what you did by realizing that you were in no condition to drive and then doing the right thing by not driving.

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  • My boyfriend was sentenced to 30 days in jail and 60 days Home monitoring. How long will he actually serve in jail?

    Everyone (including jail counselor) says he will only have to serve 20 days, but his appointment to report for home monitoring is on the 24th day of his sentence. Will he have to stay in jail until his appointment or will he be released on the 20...

    William’s Answer

    Most correctional facilities in Washington have a "good time" clause which is really done due to jail overcrowding. If this applies in this situation, and it will depend on where the time is being served, inmates will serve 2/3 of the time in custody. So, if you've been told that he will only serve 20 days on a 30 day sentence, that makes sense. He will be released from jail on the date that he is expected to be released and then must report to EHM on the date that the court ordered him to report.

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  • In Washington State, does an officer have to read you your miranda warning before asking you to perform field sobriety tests.

    I had been asked to leave me car, in a drive-thru, not allowed to move it or retrieve my identification, or wallet. I assumed that I was not free, etc.

    William’s Answer

    Unfortunately, the answer is usually "NO." FSTs are non-testimonial in nature and therefore not subject to the protections of Miranda. There is case directly on point called Heinemann v. Whitman County. However, if your freedom of movement, has been curtailed to that associated with a formal arrest, you may be able to argue and "constructive arrest." However that would require very specific and favorable facts.

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  • In Washington State, does an officer have to read you your miranda warning before asking you to perform field sobriety tests.

    I had been asked to leave me car, in a drive-thru, not allowed to move it or retrieve my identification, or wallet. I assumed that I was not free, etc.

    William’s Answer

    Unfortunatley, the answer is usually no. FSTs are non-testimonial in nature and therefore, not protected by Miranda. There is a case directly on point: Heinemann v. Whitman County. However, if there has been a more enhanced restriction of movement, other than what's usually associated with a traffic stop, you may be able to argue a "constructive arrest." But that argument would be very fact specific.

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  • I am a NJ resident that was convicted of DUI in '01. I was arrested recently in PA for DUI. Will the 1st one still matter?

    I am wondering how this will affect my job and how the consequences will vary depending on if it is considered a first or second offense.

    William’s Answer

    According the Pennsylvania law, they look back a total of 10 years to determine prior offenses. So, depending the date of offense on your first case, you could be looking at 2nd offense penalties which range anywhere from 5 to 90 days based upon your breath test readings. The real question is will the Pennsylvania prosecuting attorney find out about the New Jersey offense. That question is more appropriate for an attorney practicing in that area of Pennsylvania. However, experience has shown that with the creation of the National Driver Registry, out of state priors are easier to find today than they were a few years ago.

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