Penal Code § 381b PC – Possession of Nitrous Oxide (Laughing Gas)

California Penal Code § 381b PC makes it a crime to (a) possess nitrous oxide (laughing gas) or (b) be under the influence of the substance for recreational purposes. Doing so is a misdemeanor offense punishable by up to six months in jail.

The language of the statute reads as follows:

381b. Any person who possesses nitrous oxide or any substance containing nitrous oxide, with the intent to breathe, inhale, or ingest for the purpose of causing a condition of intoxication, elation, euphoria, dizziness, stupefaction, or dulling of the senses or for the purpose of, in any manner, changing, distorting, or disturbing the audio, visual, or mental processes, or who knowingly and with the intent to do so is under the influence of nitrous oxide or any material containing nitrous oxide is guilty of a misdemeanor.

Examples

• carrying an inhalant filled with nitrous oxide in a backpack to use it later.
• inhaling nitrous oxide out of a balloon to become intoxicated.
• sucking in nitrous oxide for its euphoric effect.

Defenses

We draw upon several legal strategies to help our clients contest charges under this code section. A few common ones include showing that:

• you were intoxicated from nitrous oxide due to medical care.
• you were not “under the influence” of the gas.
• police officers conducted an unlawful search and seizure.

Penalties

A violation of this criminal law is a misdemeanor (as opposed to an infraction or a felony). The crime is punishable by:

• up to six months in county jail, and
• a maximum fine of $1,000.

Our California criminal defense attorneys will highlight the following in this article:

• 1. How does California law define “illegal possession of nitrous oxide”?
• 2. Are there legal defenses to PC 381b charges?
  • 2.1 Intoxicated due to medical care
  • 2.2 Not under the influence
  • 2.3 Unlawful search and seizure
• 3. What are the penalties?
• 4. Are there related offenses?
  • 4.1 Possession of a controlled substance – HS 11350a
  • 4.2 Methamphetamine possession – HS 11377a
  • 4.3 Under the influence of a controlled substance – HS 11550

1. How does California law define “illegal possession of nitrous oxide”?

A prosecutor must prove the following to convict you under this statute successfully:

1. you possessed nitrous oxide or any substance containing nitrous oxide, and
2. you did so while intending to breathe or inhale it to become intoxicated or disturb your senses.¹

Note that you are not guilty of possessing nitrous oxide by just having it on your person. Rather, because nitrous oxide has legitimate medical uses, you are only guilty of PC 381b if the prosecutor can show that you:

1. possessed nitrous oxide, and
2. intended to use it as a recreational drug.²

This statute also makes it a crime to be under the influence of nitrous oxide. You are guilty of this offense if you:

1. are under the influence of nitrous oxide or a substance containing nitrous oxide,
2. knowingly and intentionally became so, and
3. are not under the influence of nitrous oxide because it was administered as part of medical, surgical, or dental care.³

2. Are there legal defenses to PC 381b charges?

From our extensive experience defending against laughing gas charges, we find the following three defenses to be effective in winning case dismissals:

1. you were intoxicated due to medical care.
2. you were not under the influence.
3. law enforcement conducted an unlawful search and seizure.

2.1 Intoxicated due to medical care

The language of PC 381b states that you are not guilty under the statute if you are intoxicated from nitrous oxide due to medical or dental care. Therefore, you can contest a charge by showing that you were only high from the gas because of a medical or dental procedure. We would obtain your medical/dental records as proof.

2.2 Not under the influence

This code section makes it a crime to be under the influence of nitrous oxide. This means it is always a defense to show that you were not under the influence.

By investigating the police report, their body cam and any other available evidence from your encounter with law enforcement, we can frequently show that what the police mistook as being under the influence was actually illness, fatigue, or drunkenness – which mimic the symptoms of nitrous oxide intoxication.

Further, many police officers are not familiar with or well-trained in the signs of nitrous oxide use.

2.3 Unlawful search and seizure

We can always raise the defense that law enforcement gathered evidence of nitrous oxide possession through an unlawful search or seizure. For example, maybe law enforcement:

• entered your home without a valid California search warrant, or
• searched outside the area covered by a warrant.

If the police violated a search and seizure law, we would ask the judge to dismiss certain evidence in your case or drop your case altogether.

3. What are the penalties?

A violation of this code section is a misdemeanor offense. The crime is punishable by:

• custody in county jail (as opposed to state prison) for up to six months, and
• a maximum fine of one thousand dollars.⁴

Under California criminal procedure laws, a judge can award you with misdemeanor (or summary) probation in place of jail time.

4. Are there related offenses?

There are three crimes related to the illegal possession of nitrous oxide. These are:

1. having possession of a controlled substance – HS 11350a,
2. having possession of methamphetamine – HS 11377a, and
3. being under the influence of a controlled substance – HS 11550.

Additional Reading:

California Legislative Information page on Penal Code 381b.

National Institute on Drug Abuse page on inhalants.

Alcohol and Drug Foundation fact page on nitrous oxide.

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