Possession of Nitrous Oxide in California - Penal Code 381b PC
Many people are familiar with the substance known as nitrous oxide, also known as "laughing gas,” because it was administered in their dentist's office.
However, nitrous oxide is also gaining in popularity as a recreational drug—and since California considers it a controlled substance, it is against the law to possess or be under its influence outside of legitimate medical usage under California Penal Code 381b PC.
PC 381b says, “Anyone who possesses nitrous oxide or any substance containing nitrous oxide, with the intent to breathe, inhale, or ingest to cause a condition of intoxication, elation, euphoria, dizziness, stupefaction, or dulling of the senses, or for the purpose of changing, distorting, or disturbing the audio, visual, or mental processes, or who knowingly is under the influence of nitrous oxide is guilty of a misdemeanor crime.”
This law does not apply to anyone under the influence of nitrous oxide administered for medical, surgical, or dental care by a healthcare professional licensed to administer such an agent.
Nitrous oxide is what is commonly used in dental work or surgery to numb themselves for the purposes of treatment. In other words, use in a medical environment is not a crime because the goal is to assist in an operation.
It only becomes a crime when someone removes that gas for their purposes, not medical treatment. You could also face charges under other related statutes. For example, if you stole laughing gas from an office, you could face Penal Code 459 PC burglary charges. Other related laws include:
- Health and Code 11350(a) HS – possession of a controlled substance,
- Health and Code 11550 HS – under the influence of drugs,
- Health and Code 11377(a) HS – possession of methamphetamine.
If you are convicted of this crime, you could face up to 6 months in jail. Let's review this law further below.
What Does the Law Say?
PC 381b specifically makes it a crime to do one of two things:
- To possess nitrous oxide (or any substance containing nitrous oxide) for the purpose of intoxication; or
- To be knowingly under the influence of nitrous oxide (or any substance containing it).
"Possession" can mean either having the drug on your person OR having it in a place where you control it, such as your home or car. If the police find nitrous oxide in your possession, they can arrest you and charge you with a crime even if you don't appear to be under its influence.
The phrase "under the influence" is defined as having nitrous oxide in your system to the point where it has impaired your physical or mental abilities.
This doesn't necessarily mean that you were intoxicated in the traditional sense of the word—if nitrous oxide has affected your ability to drive, for example, you can be charged with being under the influence.
Because nitrous oxide is used in legitimate medical applications, the law makes an exception in cases where one is under the influence of nitrous oxide "under an administrator for the purpose of medical, surgical, or dental care by a person duly licensed to administer such an agent."
In other words, if you're under the influence of nitrous oxide because a doctor or dentist administered it while providing care, you're not guilty of a crime.
What Are Some Examples?
EXAMPLE 1: Some partygoers pass out balloons filled with laughing gas at a party. Todd doesn't inhale any, but he takes a balloon with him to use later.
Police pull him over during a routine traffic stop, and the balloon is discovered. Todd can be charged under PC 381b for illegally possessing nitrous oxide to get high from it.
EXAMPLE 2: Denise walks home from a dentist's office after filling a cavity. A member of law enforcement observes that she appears to be intoxicated. Denise was arrested on suspicion of being under the influence of nitrous oxide since she was still feeling the effects of the gas from her dental work.
In this case, however, Denise would likely not be charged or convicted because a phone call to her dentist can verify that he administered the gas to her for a legitimate purpose.
What are the Penalties If Convicted?
Violating PC 381b is a misdemeanor offense in California. The maximum penalty is six months in jail and a $1,000 fine.
In these cases, however, the judge can impose summary probation instead of jail time. In addition, the court may order you to participate in a drug education or counseling program and perform community service.
What are the Common Legal Defenses?
To convict you of this crime, prosecutors must demonstrate all the elements of the crime, such as:
- You had possession of nitrous oxide, or any material containing it; and
- You had the intention of inhaling it for the purpose of intoxication, euphoria, or disrupting the senses (in other words, for recreational purposes); OR
- You were intentionally under the influence of nitrous oxide outside a legitimate medical application by an authorized professional.
Thus, most defenses to this charge will have something to do with disproving or casting doubt on one or more of these facts. Some examples are discussed below.
Perhaps we can argue that you were intoxicated with nitrous oxide due to medical/dental care. Suppose you can show that you were under the influence of nitrous oxide because it was administered to you by a licensed professional for medical or dental purposes. In that case, you have a valid defense.
Perhaps you didn't intentionally inhale nitrous oxide to become intoxicated. For example, maybe someone deceived you into inhaling it by telling you it was helium or some other gas.
Perhaps the nitrous oxide wasn't in your possession. For example, it belonged to someone else in your group, and you were mistaken for the one who possessed it.
Perhaps we can argue that the police committed an illegal search and seizure. If police discovered the nitrous oxide as a result of an unlawful search and seizure—for example, if they searched without a warrant or probable cause—then any evidence they discovered during that search can't be used against you.
If you were charged with violating Penal Code 381b, contact our law firm to review the case details and legal options. Perhaps negotiation with the prosecutor is possible for a favorable resolution, such as reduced charges or a case dismissal.
You can contact the California criminal defense lawyers at Eisner Gorin LLP for an initial case evaluation via phone, or you can fill out the contact form.
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