PC 381 Possession of Nitrous Oxide (Laughing Gas): Criminal Defense Lawyers Explain PC381B POSSESS NITROUS OXIDE Law, Penalties & Defense
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Information on the crime of possession of nitrous oxide, commonly known as “laughing gas,” or “NOS,” is found at California penal code 318 PC.
The following information covers the laws, penalties and common defenses related to PC 318 [PC381B POSSESS NITROUS OXIDE]. For further information, contact our CA criminal defense lawyers today for a free consultation.
PC 381 Law
Per penal code 381, ‘Any person who possesses nitrous oxide, or any substance containing nitrous oxide, with the intent to breathe, inhale, or ingest that nitrous oxide, for the purpose of causing a condition of intoxication, elation, euphoria, dizziness…, or dulling of the senses…, is guilty of possession of nitrous oxide' (PC 381 Abbrev.).
Note: it is also a crime to be under the influence of nitrous oxide (PC 381 & HS 11550), to sell, offer to sell, or furnish nitrous oxide to another without a license (PC 381(b)), or drive under the influence of nitrous oxide (VC 23152(f)).
Medical Application: PC 381 does not apply to any person or medical organization who is authorized to possess and administer nitrous oxide for purpose of medical, surgical or dental care by a duly licensed person.
Similarly, PC 381 does not apply to persons who are under the influence of nitrous oxide, or any material containing nitrous oxide…, for the purpose of medical, surgical, or dental care by a person duly licensed to administer such an agent PC 381 Abbrev.).
Nitrous Oxide Defined: Nitrous oxide refers to any of the following substances: N2O, dinitrogen monoxide, dinitrogen oxide, nitrogen oxide, or laughing gas (PC 381(c)).
Note: PC 381 does not apply to the sale of nitrous oxide contained in food products for use as a propellant (PC 381(g)).
Record Notation Requirement: Persons authorized to dispense, sell, or distribute nitrous oxide are legally obligated to obtain and keep purchaser identification, including valid government identification of the purchases. Records of purchaser information must be made available for inspection by the California State Board of Pharmacy and law enforcement (PC 381e(a) Abbrev.).
Distributors Requirements: Seller and distributors of Nitrous Oxide must notify buyers of nitrous oxide of the dangers of inhalation of nitrous oxide and the various violations of law related to possession and distribution of nitrous oxide (PC 381(d) Abbrev.).
Note: Some exceptions to PC 381(d) above apply to wholesalers of nitrous oxide who are licensed by the Board of Pharmacy under Code Number 325120 or 424690 of the North American Industry Classification System (NAICS) (PC 381(e) Abbrev.).
PC 381 Penalties
Misdemeanor Classification: Possession of nitrous oxide is classified as a misdemeanor, as opposed to an infraction or felony. See Felony v. Misdemeanor Differences
Jail Sentence: If found guilty of penal code 381, the defendant could face up to six (6) months in the county jail.
The length of jail sentence related to a conviction for PC 381 depends on many factors, including the level of sophistication of the offense, the defendant’s criminal history, the harm caused to any third party, the defendant’s showing of remorse, if any, and more.
Probation Sentence: A probation sentence is a period of supervision, as opposed to a jail sentence. A probation sentence after a conviction for PC 381 is allowed, but it is not guaranteed.
Whether a probation sentence after a conviction for possession of nitrous oxide is granted to the defendant depends on many factors, including the defendant’s criminal history, the terms of any negotiated plea bargain agreement, if any, and more.
Probation Terms & PC 381: A probation sentence after a conviction for possession of nitrous oxide will likely include any of the following: 1) remain free from new misdemeanor or felony arrests and/or convictions for at least one (1) year, 2) pay restitution to any victims, pay court fines (up to $1,000) and court security fees, and more.
Note: Probation for PC 381 is called "misdemeanor probation," "summary probation," "information probation," or "court probation." These terms are synonymous and mean that the probationer does not have a felony probation officer that monitors probation terms. For more information, see Misdemeanor v. Felony Probation.
CIMT: Possession of nitrous oxide (PC 318) or being under the influence of nitrous oxide (HS 11550) is not classified as a crime involving moral turpitude (CIMT).
A crime involving moral turpitude carries special and direct penalties related to immigration status, professional licensing and military status. See Crimes Involving Moral Turpitude.
Note: Illegal sale of nitrous oxide is classified as a crime involving moral turpitude (HS 11351). In addition, furnishing nitrous oxide to a person who subsequently causes injury or death because of use of the nitrous oxide may be charged with additional crimes.
Additional Penalties: In addition to a possible jail or probation sentence, a conviction for PC 381 may result in possible criminal protective orders (CPO), possible loss of scholarship, possible loss of certain family law rights, possible loss of driving privileges (i.e., DUI Nitrous Oxide), possible loss of employment or housing opportunities, and more.
PC 381 Defenses
Common defenses to a criminal charge of possession of nitrous oxide include insufficient evidence to prove defendant knew the substance he possessed (mistake of fact), illegal search and seizure, coerced confession, Miranda Rights violations, entrapment, and statute of limitations (one year from the date of the alleged offense).
Possession Defined: To “Possess” nitrous oxide in violation of PC 381 means the defendant had either actual or constructive control of the nitrous oxide. Actual control means the nitrous oxide is on the defendant’s person (body), while constructive possession means the defendant can control the nitrous oxide, such as in the defendant’s house or vehicle.
Note: Defense to nitrous oxide related crimes will vary depending on the facts and circumstances.
For example, under the influence of nitrous oxide while driving (VC 23152(f)) would require evidence that the defendant was driving a motor vehicle, while sale of nitrous oxide evidence would require proof of intent to sell (HS 11351), etc.
Drug Diversion: In some cases, the defendant might be allowed to enter into a pretrial diversion program whereby his or her criminal charges are dismissed upon successful completion of probation-like terms (PC 1000).
Note: Drug court diversion option is generally preferred by criminal defendants charged with possession of, or under the influence of, nitrous oxide. This is especially true for licensed professionals and non-US citizens because successful completion of diversion does not result in a criminal conviction (See Drug Court Diversion).
Auto Racing w/NOS: Possession of nitrous oxide for use in motor sports competitions (i.e., “NOS” injection systems used in professional drag racing, hot rod competitions, etc.) is allowed, but only with legally authorized licensing for use, installation, sale, distribution and record-keeping.
Note: Possession of nitrous oxide (NOS) to enhance automative performance outside of properly licensed professional motorsports is illegal (PC 381).
Post-Conviction Options: After a criminal conviction for possession of nitrous oxide (PC 381(a)), the defendant might have several post-conviction options available depending on the circumstances, including withdraw of a guilty of no contest plea, appeal of the misdemeanor conviction, petition the court for early termination of probation, or expungement.
Civil Compromise: A civil compromise is a process in criminal court whereby a defendant’s criminal misdemeanor charge is dismissed if the victim of the defendant’s crime agrees to settle the matter (in criminal court) and the defendant makes restitution to the victim (PC 1377). This applies to non-DUI-related nitrous oxide crimes when a victim is named in the criminal charges.
For more information on the crime of possession of nitrous oxide, or California penal code 381(b), contact our highly successful criminal defense lawyers today for a free consultation.
Our team of award-winning criminal defense lawyers, including winning trial lawyers, have handled thousands of felony and misdemeanor cases in the San Bernardino & Riverside County, including the cities and courts of Redlands, Fontana, Ontario, Rancho Cucamonga, Victorville, Yucaipa, Rialto, and more. Call today!
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