The recreational abuse of nitrous oxide — commonly known as Whip-Its or Galaxy Gas — has surged in popularity, particularly among younger crowds.

While often perceived as harmless party drugs, nitrous oxide abuse carries significant health risks and legal consequences. If you’re caught selling or distributing nitrous oxide for recreational use in California, the penalties can be severe.

If you or someone you know has been accused of dealing nitrous oxide for recreational use, it’s important to speak with a skilled criminal defense attorney as soon as possible. They can review the facts of your case and advise you on the best route forward.

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What is nitrous oxide?

Nitrous oxide is a colorless gas often used in medical and industrial applications, such as anesthesia and food-grade propellants for whipped cream dispensers (commonly referring to the brand “Whip-Its”). When inhaled recreationally, nitrous oxide induces a brief euphoric high, often accompanied by dizziness, laughter or distorted perception.

Although nitrous oxide is legal for specific uses, California law strictly regulates its sale and distribution to prevent abuse. Sellers caught dealing nitrous oxide with the knowledge that it will be used recreationally may face criminal charges under state law.

Criminal charges you can face for dealing nitrous oxide in California

In California, the sale or distribution of nitrous oxide for recreational use can lead to charges under California Penal Code 381b, which governs nitrous oxide and other inhalants.

Key provisions of Penal Code 381b:

It’s illegal to sell, furnish or distribute nitrous oxide with knowledge, or reasonable cause to believe, that the recipient will use it for recreational inhalation. This includes direct sales as well as indirect actions, such as giving nitrous oxide to someone who you know intends to abuse it.
A critical element of this law is the requirement that the seller or distributor has knowledge or reason to believe that the nitrous oxide will be used for intoxication purposes. This means innocent transactions for legitimate purposes, like food or medical use, typically fall outside the scope of the statute.
While primarily aimed at individual sellers or distributors, this law may also apply to businesses or establishments that knowingly facilitate the recreational abuse of nitrous oxide, such as supplying large quantities without verifying proper use.
Legitimate uses of nitrous oxide, including food-grade and medical purposes, are not criminalized under this law as long as the seller or distributor adheres to proper regulations and safeguards against misuse.

Violations of Penal Code 381b are charged as misdemeanors, with penalties designed to deter the recreational abuse of nitrous oxide and the harm it causes to individuals and communities.

Penalties for selling nitrous oxide for abuse

As we mentioned earlier in this guide, if convicted under Penal Code 381b, you could face misdemeanor charges, which include:

Fines up to $1,000,
Up to 6 months in county jail, or
In some cases, probation may be imposed as an alternative to jail time.

These penalties can escalate if your actions contribute to severe harm or involve other crimes, such as selling to minors or distributing large quantities.

In some cases, individuals dealing nitrous oxide may face additional charges, including:

Contributing to the delinquency of a minor (Penal Code 272) – Selling or furnishing nitrous oxide to a minor can lead to separate charges and enhanced penalties.
Drug paraphernalia (Health and Safety Code 11364) – Selling equipment, such as balloons or cartridges, intended for inhalation of nitrous oxide may be considered distributing drug paraphernalia.
Child endangerment (Penal Code 273a) – If the use or distribution of nitrous oxide endangers a child’s health or safety, additional felony charges may apply.

Defenses against nitrous oxide distribution charges

Being charged with selling or distributing nitrous oxide for abuse doesn’t mean you’ll be convicted. Several legal defenses could apply to your case:

No knowledge of abuse – If you didn’t know, and couldn’t reasonably suspect, that the nitrous oxide would be used recreationally, you may avoid conviction.
Legitimate purpose – If the nitrous oxide was sold for a lawful reason, such as medical or food-grade use, your attorney can argue that the sale complied with legal standards.
Insufficient evidence – The prosecution must prove beyond a reasonable doubt that you knowingly facilitated misuse. Weak or circumstantial evidence can undermine their case.
Unlawful search or seizure – If law enforcement violated your constitutional rights during an investigation or arrest, critical evidence may be excluded.

Every case is different, and your attorney will review the facts of your case to determine the best defense strategy.

What to do if you’re charged with dealing nitrous oxide

If you’re facing charges for selling or distributing nitrous oxide for abuse, it’s important to take action quickly to protect your rights. An experienced criminal defense attorney can evaluate the details of your case, challenge the prosecution’s evidence, and build a strong defense strategy tailored to your situation.

Attorney Robert M. Helfend has over 40 years of experience defending clients in California against a wide range of criminal charges, including controlled substance and inhalant-related offenses. His aggressive, results-oriented approach has earned him recognition as one of California’s top criminal defense attorneys.

Don’t face these charges alone. Contact the Helfend Law Group today at 800-834-6434 for a free consultation.

Published January 28, 2025.