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

Updated June 11, 2021

California Penal Code 381b PC makes it a crime to possess nitrous oxide – otherwise known as laughing gas – with the intent to use it recreationally or otherwise to alter one’s mood or mental functioning. This section also makes it a crime to be under the influence of nitrous oxide. A violation of this law is a misdemeanor offense punishable by up to six months in jail.

The language of Penal Code 381b states:

“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 with the aim of using it later.
• inhaling nitrous oxide out of a balloon to become intoxicated.
• sucking in nitrous oxide for its euphoric effect.

Defenses

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

• a defendant was intoxicated from nitrous oxide due to medical care.
• a defendant was 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/or
• 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 successfully convict a person under this statute:

1. the defendant possessed nitrous oxide or any substance containing nitrous oxide, and
2. the defendant did so while intending to breathe or inhale it for the purpose of becoming intoxicated or disturbing his/her senses.¹

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

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

This statute also makes it a crime for a person to be under the influence of nitrous oxide. People are guilty of this offense if they:

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?

People accused of an offense in these criminal cases have the right to challenge the accusation with a legal defense/disclaimer. Three common defenses include defendants showing that:

1. they were intoxicated due to medical care.
2. they 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 a person is not guilty under the statute if the person is intoxicated from nitrous oxide due to medical or dental care. Therefore, people can contest a charge by showing that they were only high from the gas because of a medical or dental procedure.

2.2 Not under the influence

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

Note that illness, fatigue, or drunkenness can all 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

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

• entered a 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, then a judge could dismiss certain evidence in a case or drop the 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/or
• a maximum fine of one thousand dollars.⁴

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

4. Are there related offenses?

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

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

4.1 Possession of a controlled substance – HS 11350a

Per Health and Safety Code 11350a HS, possession of a controlled substance is the crime where people unlawfully possess a controlled substance.

Under the United States Controlled Substances Act, a controlled substance includes illicit street drugs as well as certain prescription medications possessed without a valid prescription.

Recall that people are only guilty of possessing nitrous oxide if they intend to use it to get high. Conversely, people are guilty under HS 11350a if they simply possess a controlled substance. A prosecutor does not have to show that a defendant intended to use it in any way.

4.2 Methamphetamine possession – HS 11377a

Per Health and Safety Code 11377a HS, methamphetamine possession is the crime where people unlawfully possess methamphetamines and certain other narcotics.

As with violations of PC 381b, defendants can challenge a charge under this law with the defense that police found meth after conducting an unlawful search or seizure.

4.3 Under the influence of a controlled substance – HS 11550

Under Health and Safety Code 11550 HS, under the influence of a controlled substance is the crime where people:

1. are under the influence of a controlled substance or a narcotic drug, and
2. do not have a lawful prescription for the substance or drug.

As with PC 381b, a violation of this statute is a misdemeanor. However, unlike PC 381b, a violation of this law is punishable by up to one year in jail.

For additional help…

For additional guidance or to discuss your case with a criminal defense lawyer, we invite you to contact our law firm at the Shouse Law Group. Our attorneys provide both free consultations and legal advice you can trust.

Our attorneys also represent clients throughout California, including those in Los Angeles and Los Angeles County.

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