Wellness checks can be a tool for the police. In fact, sometimes they may try to use it as a way to get around the need to obtain a warrant for a lawful search and seizure. This matters to a socially responsible person who had a few too many drinks and decides to wait it out in his or her vehicle opposed to getting on the road and risking a DUI car accident and someone's life.

This matters because if you get into your vehicle while illegally intoxicated and fall asleep, someone may see you and call the police. The police will call it a wellness check (also known as a welfare check), which it very well may start out as but then it could turn into a DUI investigation.

Instead of sleeping off the alcohol in your vehicle, you may end up doing so in a holding cell.

And the problem of a wellness check is not only relevant to sleeping in a vehicle to avoid driving while intoxicated, but a person who maybe hasn't called his or her mom in a few days and the parent fears something happened. As a result, the police arrive at the son or  daughter's doorstep unannounced and spot something that looks like drugs on the dining room table. Now, the person faces charges of a drug crime.

Is it legal to arrest someone for a DUI or any other criminal activity when it's the result of a wellness check?

The answer to this question is tricky. There is potential for your Fourth Amendment rights to be violated when a wellness check is conducted.  In a nutshell, though, it is legal to arrest someone for a crime after a wellness check. The police must be able to show on the facts that you or your property was searched out of a fear of your safety or the public's safety. 

U.S. Supreme Court Decision Creating the Exception to the Fourth Amendment 

Initially, the Supreme Court of the United States created an exception to the warrant requirement for a search and seizure in Cady v. Dombrowski. In this case, a car was towed and the police believed there was a gun in it, so for the protection of the public, it searched the vehicle for the gun. The Supreme Court recognized that the search and seizure was based on community care taking and public safety, and thus the search and seizure was legal, and an exception to the rule was created.

Illinois Courts Expanding the Exception to the Fourth Amendment

Illinois courts have only expanded on the U.S. Supreme Court's decision. For example, in People v. Smith, The Illinois appellate court found it constitutional to arrest a person for possessing a gun unlawfully. In this case, the driver was arrested for drunk driving, and the passengers were illegally intoxicated, too, and thus could not drive. The police searched them before placing them in the patrol car and during this search, the gun was found.

You can, however, fight searches and seizures that are conducted as a wellness check. An experienced DUI or criminal defense attorney will thoroughly review the facts and circumstances and through this process, will identify if an emergency situation that jeopardizes a person's safety was indeed present. If not, it will be challenged.

If you believe you were wrongly arrested after a wellness check or have questions about your specific arrest, contact the Law Office of Howard J. Wise & Associates. Our legal team is experienced and resourceful, and we are always ready to answer your questions.