Yes. It is a misdemeanor to possess nitrous oxide intending to inhale it to get high or otherwise alter your senses. It is also a misdemeanor to be knowingly and intentionally under its influence, unless that comes from medical, surgical, or dental care given by a licensed provider. Having nitrous oxide for ordinary uses, such as whipped-cream chargers or automotive work, is not a crime by itself; the purpose is what the prosecution has to prove.

The core offense: intent to inhale for intoxication

Penal Code section 381b makes it a misdemeanor to possess nitrous oxide, or any substance containing it, with the intent to breathe, inhale, or ingest it to cause intoxication, elation, euphoria, dizziness, stupefaction, or dulling of the senses, or to change, distort, or disturb audio, visual, or mental processes. It is also a misdemeanor to be under the influence of nitrous oxide knowingly and with the intent to be. The section does not apply to someone under its influence from an administration for medical, surgical, or dental care by a person licensed to give it.

Neither section 381b nor section 381c, discussed below, sets its own jail term, so the general misdemeanor punishment applies: a county jail term of no more than six months, a fine of no more than $1,000, or both (Penal Code section 19).

Because the offense depends on purpose, owning chargers or a tank is not the crime. The prosecution has to prove why you had it, or that you were knowingly under its influence. In practice, that purpose is argued from the circumstances, such as what was found with the nitrous oxide, where it was, and what was said at the time. Possession for cooking, automotive, or industrial use does not carry the required purpose.

Rules for people who sell or give it away

Penal Code section 381c is aimed at sellers, not users. It is a misdemeanor to sell, furnish, administer, distribute, or give away, or offer to do any of those things, a device, canister, tank, or receptacle containing only nitrous oxide (or only a chemical compound mixed with nitrous oxide) to someone under 18. No intoxication purpose is required; the buyer’s age is what matters.

  • A seller has a defense if they honestly and reasonably believed the person was at least 18, but the seller must prove that belief by a preponderance of the evidence.
  • The court must consider community service as a condition of probation. For a knowing violation after a prior conviction under the section, the court must suspend the business license for up to one year unless the owner shows a good faith attempt to prevent illegal sales or deliveries by employees.
  • Section 381c does not apply to licensed medical or dental administration, or to the sale of nitrous oxide contained in food products for use as a propellant, like the propellant in a can of whipped cream. A charger or tank holding only nitrous oxide matches the containers the section covers, so do not assume the food exception applies to it.

Two other sections also reach sellers. Penal Code section 381d makes it a misdemeanor to dispense or distribute nitrous oxide to someone the seller knows or should know will use it in violation of section 381b, if that person then causes great bodily injury or death to themselves or someone else. Penal Code section 381e requires anyone who dispenses or distributes nitrous oxide to record each sale, with the buyer’s signature, complete residential address, and valid government-issued photo ID. It does not apply to licensed medical or dental administration, to nitrous oxide in food products used as a propellant, or to sales by Board of Pharmacy-licensed wholesalers and certain manufacturers.

A new sales law starts in 2027

Senate Bill 936, approved on September 18, 2026, adds Health and Safety Code section 119408. It makes it an infraction to sell, offer, or distribute nitrous oxide containers that can hold more than eight grams, containers someone can inhale from directly, nitrous oxide that has or is marketed as having the taste or smell of a food, and devices the seller knows or reasonably should know let someone inhale it from the container or hold it for inhaling. The eight-gram limit has exceptions, including containers holding less than nine grams for food or food preparation, products designed and marketed for vehicle performance, products intended and marketed for manufacturing or industrial use, and sales to licensed medical, veterinary, or dental practitioners. Fines are up to $500 for a first offense, $1,000 for a second, and $2,000 after that. As a regular-session statute, it takes effect January 1, 2027 (California Constitution, article IV, section 8). Its limits are aimed at sales and distribution, not at personal possession.

What decides a case

Because these statutes turn on purpose, the buyer’s age, or how a sale was made, rather than on possession alone, a real case usually comes down to context: what you intended, what else was found, whether a minor was involved, and, for a seller, what records were kept. If nitrous oxide use is connected to driving, impairment is a separate question; see the firm’s page on drug DUI.

Getting help

Whether a nitrous oxide case is about your own possession or about a sale, the facts behind the charge decide it, and they are rarely obvious from the physical evidence alone. The Law Offices of David S. Chesley can look at what your specific situation actually shows. Call (800) 755-5174 to discuss it.