Furnishing Nitrous Oxide to a Minor in California - Penal Code 381c PC
Nitrous oxide (otherwise known as "laughing gas") is a legal but controlled substance in California commonly administered in medical settings for pain relief and sedation (for example, in the dentist's office).
However, its misuse as a recreational drug, particularly for its euphoria-inducing effects, has led to stringent regulations. To that end, selling or furnishing nitrous oxide to a minor is a misdemeanor offense under Penal Code 381c PC. If you are convicted of this crime, you could face substantial fines and up to 6 months in jail.
Nitrous oxide is gaining in popularity as a recreational drug. Since California considers it a controlled substance, it is against the law to possess or be under its influence outside of legitimate medical usage.
PC 381c says, "(a) As used in this section, "nitrous oxide" refers to any of the following substances: N2O, dinitrogen monoxide, dinitrogen oxide, nitrogen oxide, or laughing gas.
(b) Every person who sells, furnishes, administers, distributes, gives away, or offers to sell, furnish, administer, distribute, or give away a device, canister, tank, or receptacle to a person under 18 years of age, either exclusively containing nitrous oxide or exclusively containing a chemical compound mixed with nitrous oxide, is guilty of a misdemeanor. The court shall consider ordering the person to perform community service as a condition of probation.
(c) (1) It is a defense to this crime that the defendant honestly and reasonably believed that the minor involved in the offense was at least 18 years of age.
(2) The defendant shall bear the burden of establishing this defense by a preponderance of the evidence."
What Does the Law Say?
Straightforward in its approach, Penal Code 381c PC specifically prohibits the act of knowingly selling or furnishing nitrous oxide to anyone under the age of 18.
This includes any canister, tank, or other container of nitrous oxide or any chemical compound mixed with nitrous oxide. The law aims to protect minors from potential abuse and serious health risks associated with inhalant use, as these substances can cause significant harm when misused.
To ensure compliance with the law, PC 381c specifically permits an individual to refuse to sell or furnish nitrous oxide to anyone who cannot provide proof of age without fear of repercussions.
Notably, 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 related PC 381b if the prosecutor can show that you:
- Possessed nitrous oxide, and
- Intended to use it as a recreational drug.
This law also makes it a crime to be under the influence of nitrous oxide. You are guilty of this offense if you:
- Are under the influence of nitrous oxide or
- A substance containing nitrous oxide,
- Knowingly and intentionally became so.
You are not unlawfully under the influence of nitrous oxide if it was administered as part of medical, surgical, or dental care.
What Must Be Proven to Convict?
To secure a conviction under Penal Code 381c PC, the prosecution must prove the following elements of the crime:
- You sold or gave a container or device containing nitrous oxide to someone under the age of 18.
- You knew or reasonably should have known that the person was under age 18 at the time the nitrous oxide was furnished and
- The transaction took place outside the context of medical usage.
What are the Exceptions to the Law?
Although the statute restricts selling or furnishing nitrous oxide to minors for unlawful purposes, certain exceptions exist. These include:
- Medical Usage: Licensed medical professionals and dental practitioners are allowed to administer nitrous oxide to minors in a controlled and lawful medical setting.
- Legitimate use as a Propellant: Nitrous oxide is sometimes found in small amounts in food products or as a propellant for other products. In these cases, the purchase of these products does not count as a violation under PC 381c.
What are Some Examples?
EXAMPLE 1: Dave, a 20-year-old college student, attends a party and brings several small canisters of nitrous oxide, commonly referred to as "whippets." During the party, a 17-year-old guest approaches Dave and asks for a canister. Despite knowing the guest is under 18, Dave gives her a canister with no hesitation. Dave can be charged under PC 381c.
EXAMPLE 2: Toni is a dental assistant in an office that uses laughing gas for sedation purposes during procedures. Jessica, age 14, comes in to have her wisdom teeth pulled, and the dentist instructs Toni to administer laughing gas to the patient. Toni is within legal boundaries and would not be charged under PC 381c.
What Are Related Crimes?
Several laws are related to the unlawful possession of nitrous oxide by a minor, including the following:
- Penal Code 381b - Possession of nitrous oxide.
- Health and Safety Code 11350 HS - Possession of a controlled substance.
- Health and Safety Code 11377 HS - Possession of methamphetamine.
- Health and Safety Code 11550 HS - Under the influence of a controlled substance.
Penalties for Violating Penal Code 381c PC
Violating PC 381c is a misdemeanor in California. If you are convicted, you could face:
- Up to 6 months in county jail and/or
- Up to $1000 in fines.
This statute specifically permits the courts to impose summary probation (including community service) as an alternative to jail time.
In addition to the penalties above, if you have a prior conviction under PC 381c, the court reserves the right to suspend your business license for up to one year.
Common Defenses
If you're charged with illegally furnishing nitrous oxide to a minor, several potential defenses might apply to your case. It's important to discuss your specific situation with qualified California criminal defense attorneys, but some common defenses include:
- Lack of Knowledge: If you were unaware of the recipient's age and had no reasonable way to determine they were under 18, this could be a strong defense. For example, if the minor presented a fake ID that appeared legitimate, this could demonstrate your lack of knowledge.
- Exceptions Apply: If you can show the gas was furnished in a legitimate medical context or that the canister in question was a legitimate product using laughing gas as a propellant only, you cannot be convicted of a crime.
- Police Misconduct: Allegations of unlawful searches, entrapment, or improper evidence collection by law enforcement might weaken the prosecution's case against you. Evidence obtained through illegal means can often be challenged in court and suppressed.
- Not Under the Influence: This law makes it a crime to be under the influence of nitrous oxide. Thus, 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 evidence, we might argue that what the police mistook as being under the influence was actually illness, fatigue, or drunkenness, which can mimic the symptoms of nitrous oxide intoxication.
For more information, contact our law firm, Eisner Gorin LLP, based in Los Angeles.
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