(262) 786-7100
Start with a FREE Consultation:
(262) 786-7100
Nitrous oxide possession for recreational use as a drug is illegal. Legal nitrous possession is legal in some instances such as in food preparation and is legal for inhalation when administered by a medical or dental professional. Illegally possessing nitrous oxide for inhalation can result in a Class A misdemeanor.
If you are charged with nitrous oxide possession or any drug possession, the first thing you should do is retain legal representation. While you have the right to represent yourself in any legal matter, a qualified criminal defense attorney can assist you in this process and can help you obtain the best possible outcome.
The prosecution has the burden of proving the case beyond a reasonable doubt. To do that, the prosecution must either prove that:
First, the prosecution must prove that you possessed the nitrous oxide. Possession can be either on your person or in an area over which you exert physical control. In some circumstances, the prosecution may not be able to prove the charge against you if the substance is not found on your person. For example, if it is found in a communal space and not on your person, the prosecution may not be able to prove that you legally possessed the substance.
Second, having nitrous oxide in your possession is not the end of the matter. If the nitrous oxide was found as a result of an illegal search and seizure, your attorney can assist you in filing a motion to suppress this evidence. If that evidence is suppressed, the matter could be entirely dismissed. For example, if the nitrous oxide was found in your vehicle but the officer lacked probable cause or a warrant to search your vehicle, the evidence of the possession would be suppressed, where it then wouldn’t be able to be used against you in court.
Third, if the prosecution cannot prove at trial that you intended to inhale the nitrous oxide, the matter could be dismissed. For example, certain grocery products like whipped cream canisters have nitrous oxide in them, and using it for that purpose is legal.
Under Wisconsin statute 941.315(2), possession of nitrous oxide or a substance containing nitrous oxide is illegal if you intend to inhale it, or if you had in fact inhaled the product. If found guilty of the offense it is a Class A misdemeanor, with the potential for up to nine months in jail, $10,000.00 in fines, or both.
It is also illegal under Wisconsin statute 941.315(3) to distribute, deliver, or possess with the intent to distribute or deliver nitrous oxide to a person under the age of 21, or to a person over 21 years old when the person knows or has reason to know that the other person intends to inhale the nitrous oxide in violation of 941.315(2). If found guilty of the offense it is a Class H felony, with the potential for up to six years in prison, $10,000.00 in fines, or both.
A possible defense to a violation of Wisconsin statute 941.315(2) is found in Wisconsin statute 941.315(5)(a), which holds that the criminal penalties do not apply if the person inhaling the nitrous oxide receives it for the purpose of medical or dental care and the substance was administered by a physician, dentist, or dental therapist or somebody under their supervision.
Similarly, a defense to Wisconsin statute 941.315 (3) is found in Wisconsin statute 941.315(5)(b), which holds that the criminal penalties do not apply to the person if he or she is administering the nitrous oxide for the purpose of providing medical or dental care, and they are a physician, dentist, or dental therapist or is administering it under the supervision of a physician, dentist, or dental therapist.
Sealed nitrous oxide canisters not intended for inhalation are allowed to be in the cabin of motor vehicles under Wisconsin statute 346.395 so long as they are sealed. Opened containers not intended for inhalation are allowed to be in the trunk or some other area of the vehicle not normally occupied by the driver or passengers.
Additionally, as nitrous oxide is an intoxicant, it is possible that consumption of nitrous oxide before or while driving could result in an operating while intoxicated (OWI) charge.
Finally, open containers of nitrous oxide in a motor vehicle could result in citations for open container citations. As a result, use of nitrous oxide to boost engine performance on public roads is not allowed.
Whippets are not automatically illegal in Wisconsin, rather it is how they are used. The possession or use of whippets is illegal if used as described in Wisconsin statute 941.315(2) and (3). Specifically, whippets cannot be intentionally inhaled and used as a drug.
Because Galaxy Gas is a brand of flavored nitrous oxide, using Galaxy Gas in violation of Wisconsin statute 941.315(2) or (3) could result in criminal charges. Specifically, Galaxy Gas cannot be intentionally inhaled and used as a drug.
As noted above, simple possession of nitrous oxide with the intent to use it or in fact using it outside of certified medical or dental treatment is a Class A Misdemeanor, punishable by up to nine months in jail, $10,000.00 in fines, or both.
Further, possession with intent to distribute to another outside of certified medical or dental treatment is a Class H Felony, punishable by up to six years in jail, $10,000.00 in fines, or both. Additionally, any person convicted of a felony faces additional consequences like the loss of firearm rights.
