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

California Penal Code 381 PC makes it a crime to possess nitrous oxide – otherwise known as “laughing gas” – with the intent to use it to get “high” or otherwise alter one’s mood or mental functioning. This section also makes it a crime to be “under the influence” of nitrous oxide.¹

Penal Code 381b PC reads: “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. This section shall not apply to any person who is under the influence of nitrous oxide or any material containing nitrous oxide pursuant to an administration for the purpose of medical, surgical, or dental care by a person duly licensed to administer such an agent.”

Nitrous oxide/laughing gas is a mood-altering gas that produces euphoric effects. It has been used to relax medical and dental patients for many years but also has a long history of recreational use.² Because it also has legitimate uses, it has more in common with prescription drugs like Vicodin than with controlled substances like cocaine or heroin.

Is it a crime to possess laughing gas?

You are guilty of the crime of possession of nitrous oxide in California if both of the following are true:

1. You possessed nitrous oxide or any substance containing nitrous oxide; and
2. You intended to breathe, inhale, or ingest the nitrous oxide for the purpose of causing a condition of intoxication, elation, euphoria, dizziness, stupefaction, or dulling of the senses, OR for the purpose of changing, distorting or disturbing your audio, visual or mental processes.³

Note that possession of nitrous oxide is different from Health and Safety Code 11350 HS possession of a controlled substance because of its second element.

With normal possession of a controlled substance, you are guilty as soon as you possess it.⁴ But because nitrous oxide has legitimate medical uses, you are only guilty of PC 381b if the prosecutor can show that you intended to use it as a recreational drug.

Example: Julia’s sister Rachel is a dentist who has to move offices suddenly because of a dispute with her landlord. For a few weeks Rachel is between offices and needs help storing her dental equipment. Julia offers to store some of it at her apartment.

A neighbor sees Julia receiving a delivery of a nitrous oxide tank and calls the police.

But Julia is not guilty of nitrous oxide possession under Penal Code 381b PC because she did not intend to use the nitrous oxide for intoxication–she was only storing it for Rachel.

PC 381b also makes it a crime to be under the influence of nitrous oxide. You violate this section of California’s nitrous oxide law if:

1. You are under the influence of nitrous oxide or a substance containing nitrous oxide;
2. You knowingly and intentionally became so; and
3. You are not under the influence of nitrous oxide because it was administered to you as part of medical, surgical or dental care by a person licensed to do so.⁵

Example: Peter goes to the dentist for a procedure and is given nitrous oxide to help him relax. Then, against the advice of the dentist, he gets in his car and drives home. He runs a stop sign and is stopped by a police officer.

Peter cannot be convicted of being under the influence of nitrous oxide under Penal Code 381b because a licensed person administered the laughing gas to him as part of a dental procedure. (However, he may be charged with Vehicle Code 23152(e) VC driving under the influence of drugs.)

What are the penalties?

Possession or being under the influence of laughing gas (nitrous oxide) is a California misdemeanor.⁶

This means that the potential consequences of a PC 381b conviction are:

• Misdemeanor (summary) probation;
• Up to six (6) months in county jail; and/or
• A fine of up to one thousand dollars ($1,000).⁷

How can I fight the charges?

If you are charged with possession or being under the influence of nitrous oxide in California, a drug crimes and criminal defense attorney can help. S/he can help determine the common legal defenses that will be most helpful for fighting your nitrous oxide charges.

If you are accused of possessing laughing gas, the first line of defense is usually to argue that you did not intend to use the nitrous oxide for intoxicating purposes. Maybe you were merely keeping a tank for a friend or relative. Or maybe you acquired a tank due to social pressure from friends and did not actually intend to use it.

According to Los Angeles criminal defense attorney Neil Shouse⁸:

“It’s important to remember that the burden in a criminal case is on the prosecutor to prove that your behavior met the legal definition of the crime. In the case of PC 381b, that means that she or he has to prove that you intended to use the nitrous oxide you possessed as a recreational drug. If his or her evidence on this point leaves any doubt, then the jury is required to find you not guilty.”

Police misconduct is another common legal defense for fighting PC 381b charges. For example, officers may have violated search and seizure laws by searching your home without a search warrant or with an invalid warrant.

Finally, if you are charged with Penal Code 381b PC for being under the influence of laughing gas, then you may be able to argue that you weren’t under the influence–plain and simple. Illness, fatigue or drunkenness can all mimic the symptoms of nitrous oxide intoxication. And many police officers are not terribly familiar with or well-trained in the signs of nitrous oxide use.

Call us for help…

If you or loved one is charged with Penal Code 381b PC possession of nitrous oxide and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone.

We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

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