Experience in Southern California

Penal Code 381: Possession of Nitrous Oxide

Legal Definition: PC 381b

Any individual who has in their possession nitrous oxide or any substance containing nitrous oxide, with the intention of inhaling, ingesting, or breathing it for the purpose of causing a state of intoxication, elation, euphoria, dizziness, stupefaction, or dulling of the senses, or for the purpose of altering, distorting, or disturbing their auditory, visual, or mental processes, or who is knowingly under the influence of nitrous oxide or any material containing nitrous oxide, is considered guilty…

To be proven guilty under PC 381b, the prosecution must demonstrate the following:

  1. Possession of nitrous oxide or any substance containing nitrous oxide.


  1. The intention to inhale, ingest, or breathe the nitrous oxide in order to induce intoxication, elation, euphoria, dizziness, stupefaction, or dulling of the senses, or to alter, distort, or disturb one’s auditory, visual, or mental processes.

II. What does this mean?

This section does not apply to individuals who are under the influence of nitrous oxide or any material containing nitrous oxide due to medical, surgical, or dental procedures administered by a licensed professional. Nitrous oxide, also known as “laughing gas,” is often used to numb patients during dental or surgical treatments. It is clear that its use in a medical setting cannot be considered a crime since it serves a different purpose. Criminal charges arise when individuals misuse or divert the gas for their own non-medical purposes. However, if someone were to steal or remove the gas from an office without authorization, they could face additional charges, such as burglary.

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This offense differs from a violation under HS 11350 because merely possessing nitrous oxide is not a crime in itself. The additional requirement here is the possession of the gas for recreational drug use. Even if the police were to find someone under the influence of nitrous oxide without the substance on their person, they could still face charges if it is proven that they intentionally took it without medical administration or professional direction.

III. Penalties

A charge under PC 381b is categorized as a misdemeanor offense. If convicted, the possible penalties include up to six months in county jail, with at least 50% of the sentence served in custody. Additionally, a fine of up to $1000 may be imposed. Even if the nitrous oxide was lawfully purchased, it will be seized by the police and never returned.

This offense does not fall under the California Three Strikes law or PC 290, which deals with sex offenses. However, conviction could result in the loss of a professional license. Non-legal residents may also face deportation in Immigration Court since the offense involves drug use, making it deportable.

IV. Common Defenses

There are several defenses available if charged under this section. The most significant defense is challenging the second element mentioned above by proving that there was no intent to use the nitrous oxide as a recreational drug. If the prosecution fails to establish intent, it would be argued that there is insufficient evidence to prove guilt. For example, consider a scenario where an individual works for a dentist and is responsible for transporting nitrous oxide from a manufacturer to the office. If the police stop them and find the nitrous oxide, it would not be enough to prove their guilt. If there is a legitimate reason for possessing and transporting the gas that is unrelated to recreational use, there would be insufficient evidence to establish guilt.

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Another potential defense arises when the police violate an individual’s rights. For instance, if the officers search someone’s home without a valid warrant, it could be argued that the evidence seized is inadmissible, leading to a potential dismissal of the case. It is recommended to consult an experienced Criminal Defense Attorney who specializes in this area of law for the best assistance in potentially having the case thrown out of court.

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