"A lower court judge ruled that the officers had no reasonable basis to order Cruz out of the car because there was no evidence that any crime had been committed. The supreme court majority agreed.

\"Although we have held in the past that the odor of marijuana alone provides probable cause to believe criminal activity is underway, we now reconsider our jurisprudence in light of the change to our laws,\" Chief Justice Roderick L. Ireland wrote. \"Our analysis must give effect to the clear intent of the people of the Commonwealth in accord with article 14 of the Massachusetts Declaration of Rights and the Fourth Amendment to the United States Constitution.\

The high court argued that the officers could have ticketed the vehicle's driver for parking by a hydrant, but no more. The court cited arguments made in the official voter guide to explain that voters intended to have police focus on more serious crimes than marijuana possession. wrote:

cbelt3 wrote:
Lemon-
Possibly, but I'm a bit taken aback here. Because the 'smell of booze' has been the long standing justification for administering 'field sobriety tests'. Which require the person to exit the vehicle on command of the officer.

Expect this ruling to be applied to every DUI in Massachusetts from here on.

An odor of alcohol is created by drinking any amount of alcohol, not just an amount that would cause legal impairment or a person to have a .08% BAC. So an odor of alcohol alone cannot be sufficient probable cause to arrest or request a chemical test.

Since San Diego does not prohibit driving a vehicle after consuming intoxicants, therefore the odor of alcohol cannot reasonably and objectively provide probable cause to believe that the driver is under the influence of alcohol. This is especially true where the officer does not testify to any observation of erratic driving or any other indicia (other than odor) commonly associated with intoxication or impairment.

To conclude otherwise is to hold that conduct which is totally lawful is, without more, evidence of an offense sufficient to warrant arrest. Were this true, then violation of the concept of” zero tolerance” would be the standard necessary to arrest rather than the standard of “under the influence to the extent that the driver’s "mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances."