CONCORD -- Last weekend in San Jose, San Pablo, Concord and other Bay Area cities, motorists drove into sobriety checkpoints, were asked for license and registration and may have had to answer the question, "Have you had anything to drink tonight?"
It's a question synonymous with DUI checkpoints, but one a Concord man is challenging in a recent claim against the city.
"That is a question where someone is going to have to incriminate themselves," attorney Tony Boskovich said. "It's totally legitimate to say, 'I am not going to answer this question.' "
One of Boskovich's clients refused to answer such questions after coming up to a sobriety checkpoint in Concord earlier this year. Kevin Juszczyk, who drove through the stop at Concord Avenue and Pacheco Street on June 23, told an officer he would not answer questions about whether he had been drinking unless a lawyer was present.
His refusal touched off an encounter with police that has resulted in a claim filed against the city on Nov. 1, in which he alleges police harassed him as a result.
The city of Concord does not comment on pending claims or litigation, but City Attorney Mark Coon said the claim was denied on Nov. 26 because it lacked any merit.
The next step is for Juszczyk to file a lawsuit, which appears likely.
In interviews, Boskovich said his client views DUI checkpoints as an infringement on civil liberties and described him as "a rare bird that
According to the claim, Juszczyk was sober when he drove through the sobriety checkpoint. After invoking his Fifth Amendment right, an unnamed police officer told him he had to answer her question and could face arrest if he didn't, the claim states. Police searched his car without his consent, and one officer who recognized Juszczyk said he was "out to get" Juszczyk, according to the claim.
Concord police arrested Juszczyk for resisting, delaying or obstructing a police officer, but the Contra Costa County District Attorney's Office did not file charges.
Boskovich said they plan on filing a lawsuit against the city of Concord in early 2013.
Attorney Harry Stern, whose firm represents several police unions, said the "out to get" claim calls "into question the veracity of the entire claim." Stern said sobriety checkpoints are an important law enforcement tool.
During a anti-DUI campaign from Dec. 21 to Dec. 25, the CHP reported 1,170 drivers were arrested for driving under the influence, up from the same period in 2011 when 980 drivers were arrested. In the Bay Area, there were three fatal crashes and 165 DUI arrests. By comparison, there were no fatal accidents and 188 DUI arrests during the same period in 2011.
"Roadblocks and checkpoints have consistently passed Constitutional muster," said Stern, who was not aware of the claim until this newspaper brought it to his attention. "They are considered only a minor intrusion and are an important law enforcement tool for preventing the carnage associated with drunk driving."
The U.S. Supreme Court has held that sobriety checkpoints meet the Fourth Amendment standard of reasonable search and seizure. Sobriety checkpoints are not conducted in 12 states, including five in which they are illegal under state constitution.
A California Supreme Court decision in 1987 set guidelines for sobriety checkpoints, including that they must be publicly advertised in advance, have signs and warning lights before the roadblock and be organized by supervisors and not field officers.
"I think 99.99 percent of all motorists realize this is serving a salutatory purpose, and it's a minimal intrusion," said Dean Johnson, a former prosecutor who now works as a defense attorney on the Peninsula. "But you have the right not to stop (at a checkpoint) and you always have the right not to speak to police."
David DeBolt covers Concord and Clayton. Contact him at 925-943-8048. Follow him at Twitter.com/daviddebolt.