Public Health Law (PHL) 3380 & Penal Law (PL) 270.05: Nitrous Oxide Arrests & Prosecutions in New York City

So, you were arrested at the Phish concert outside New York’s Madison Square Garden after NYPD police officers grabbed you with a balloon allegedly filled with nitrous oxide. Maybe you did not even have a balloon in your hand, but were simply next to the nitrous tank when the police handcuffed and placed you under arrested. Though you may have “lucked out” and received a Desk Appearance Ticket or DAT instead of spending the night and early morning in Manhattan’s Central Booking, either of which is a far lousier option than getting lost in “Tweezer” or “You Enjoy Myself” at MSG, now you find yourself in another arena – the criminal justice system. So, with DAT in one hand and a wasted concert ticket in the other, the question remains: what are the crimes of Public Health Law 3380, Inhalation of Certain Toxic Vapers or Fumes, and Penal Law 270.05, Unlawfully Possessing or Selling Noxious Material, and since when did the NYPD start arresting concertgoers for these crimes?!

The following blog entry can’t tell you why the NYPD changed its tune to start enforcing these laws, but will break down the crimes of PHL 3380 and NY PL 270.05, their elements, the penalties, and some defenses, to these crimes.

Public Health Law 3380: Inhalation of Certain Toxic Vapers or Fumes

The Qualifying Intoxicants

As the title of PH 3380 reflects, certain vapers or fumes of the toxic variety are unlawful to possess or consume. These “hazardous inhalants” are those that contain at least one of the following chemical compounds: amyl nitrite, isoamyl nitrite, butyl nitrite, isobutyl nitrite, pentyl nitrite or any other akyl nitrite compound that s either designed to be used, or commonly used, as an inhalant.

Elements of the Crime

Now that we know the “bad” compounds, the substance of this offense that takes it down the criminal path is causing intoxication, inebriation, excitement (yes, excitement, whatever that means), stupefaction, or the dulling of your brain or nervous system, by intentionally smelling or inhaling the “hazardous inhalant’s” fumes. Breaking this misdemeanor out further, personally possessing, selling, or offering to sell these substances is also criminal with a caveat as to the selling or offering to sell the gas. That is, you must also be the aware that what you’re selling, or trying to sell, will be used to cause that very same excitement (there we go again with all this glee!) or other reactions, as reflected above. Keep in mind that using nitrous oxide with the goal of any one of these forms of intoxication, is specifically broken out as a subsection of this offense.

Penalty and Punishment

If you violate the law as set forth here, and more specifically, subsection four (4) or five (5), you are guilty of a class “A” misdemeanor. Class “A” misdemeanors have a penalty of up to one year in jail. In New York City, that jail where you would serve your punishment, even if unlikely that you would spend a day there, is the infamous Rikers Island.

New York Penal Law 270.05: Unlawfully Possessing or Selling Noxious Material

Noxious or Not, that is the Question

To kick things off, we have to know what “noxious material” is before we can make heads or tails of this crime. Simply, a container that is filled with any drug or other substance that can create offensive, suffocating, gases or vapers, or could also immobilize you, is considered “noxious material”. Additionally, its important to note that the law says that if you possess “noxious material”, then its presumptive evidence of your intent to violate the law.

Elements of the Crime

With this definition behind us, the most likely subsection of this misdemeanor criminalizes possession in situations evincing your intent to use it or cause it to be used for such things as annoying someone else or disturbing the public peace.

Penalty and Punishment

A class “B” misdemeanor, this crime is punishable by up to 90 days in the “slammer”, though its not the penalty most should worry about. It is a record of any kind that can tarnish an otherwise clean and upstanding life.

Defenses to PH 3380 and PL 270.05

Though I just confirmed the District Attorney’s Office will dismiss these charges against a concertgoing client arrested for allegedly operating a cannister while at the same time supposedly possessing nitrous filled balloons for his own use, and I am working towards the same end on behalf of another client at the time of this blog entry, it is imperative to recognize that every case is unique. Equally important, if I told you what evidence to examine and how to challenge a criminal complaint on both factual and legal grounds, I would be doing myself a disservice, and I should at least get a Phish tee-shirt for my time before giving you the out you desperately need.

Your Case, Your Future

Ultimately, neither of these offenses are “Crimes of the Century”. No, you won’t go to prison, but that doesn’t mean you should ignore or take them lightly even if my blog entry is somewhat lighthearted in its approach. Why is that? No arrest is trivial and to treat it as such is to potentially sabotage your future, especially if you have or plan to have a career requiring certain background checks, licenses or certifications. Afterall, once your criminal case is closed, the sting of regret and remorse for mishandling it will be anything but exciting (however you define it).

Saland Law is a criminal defense firm founded by Jeremy Saland, a former Manhattan prosecutor. To learn more about Desk Appearance Tickets, follow any of the links found in this article.

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