BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 1015 (Torlakson) 5
As Amended June 16, 2009
Hearing date: July 7, 2009
Penal Code VOTE ONLY
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NITROUS OXIDE:
PROHIBITION ON SALE OR FURNISHING TO MINORS
HISTORY
Source: Los Angeles City Attorney
Prior Legislation: None directly on point
Support: Los Angeles Unified School District; California
District Attorneys Association; California State
Sheriffs Association; Chief Probation Officers of
California; California Narcotic Officers Association;
California Police Chiefs Association; California Peace
Officers' Association; California State PTA; City of
Los Angeles
Opposition:None known
Assembly Floor Vote: Ayes 78 - Noes 1
(SEE COMMENT # 7 FOR AMENDMENTS TO BE OFFERED IN COMMITTEE TO
ADDRESS ISSUES OF AN AFFIRMATIVE DEFENSE AND PENALTY
PROVISIONS.)
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KEY ISSUES
SHOULD SELLING OR FURNISHING NITROUS OXIDE TO A MINOR, OR
OFFERING TO SELL OR FURNISH NITROUS OXIDE TO A MINOR, BE A
MISDEMEANOR, PUNISHABLE BY A JAIL TERM OF UP TO ONE YEAR, A FINE
OF UP TO $2,500, OR BOTH?
(CONTINUED)
WHERE A PERSON HAS BEEN PREVIOUSLY CONVICTED OF SELLING OR
FURNISHING NITROUS OXIDE TO A MINOR, SHOULD THE COURT ORDER
SUSPENSION OF THE PERSON'S BUSINESS LICENSE FOR UP TO ONE YEAR,
UNLESS THE OWNER OF THE BUSINESS LICENSE DEMONSTRATES A GOOD FAITH
ATTEMPT TO PREVENT SALES OR DELIVERIES OF NITROUS OXIDE TO MINORS BY
THE OWNER'S EMPLOYEES?
SHOULD SPECIFIED FOOD PRODUCTS THAT CONTAIN NITROUS OXIDE NOT BE
SUBJECT TO PROHIBITIONS ON SALE TO MINORS?
PURPOSE
The purposes of this bill are to 1) provide that the sale or
furnishing of nitrous oxide to a minor is a misdemeanor,
punishable by a jail term of up to one year, a fine of up to
$2,500, or both; and 2) provide that the business license of a
person who has been convicted of this crime for a second time
shall be suspended for up to one year, unless the business
license owner demonstrates good faith efforts to prevent sales
of nitrous oxide to minors by the business license owner's
employees.
Existing law provides that possession of nitrous oxide with the
intent to ingest for the purposes of intoxication is a
misdemeanor. (Pen. Code 381b.)
Existing law provides that intentionally being under the
influence of nitrous oxide is a misdemeanor, except pursuant to
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legitimate medical or dental use. (Pen. Code 381b.)
Existing law provides that any person who sells, dispenses or
distributes toluene, or any substance or material containing
toluene, to any person under 18 years of age shall be guilty of
a misdemeanor and upon conviction shall be fined in a sum of not
less than $1,000, nor more than $2,500, or by imprisonment for
not less than six months nor more than one year. (Pen. Code
380.)
Existing law provides that it shall be unlawful for any person,
firm or corporation, except a parent or legal guardian, to sell
or give or in any way furnish to another person, who is in fact
under the age of 18 years, any etching ream or aerosol container
of paint that is capable of defacing property without first
obtaining bona fide evidence of majority and identity. (Pen.
Code 594.1, subd. (a)(1).)
Existing law provides that the sale or distribution of Salvia
divinorum or Salvinorin A, or any substance or material
containing Salvia divinorum or Salvinorin A, to any person under
18 years of age a misdemeanor, punishable by imprisonment in a
county jail for not more than six months, by a fine of no more
than $1,000, or both. (Pen. Code 379.)
This bill provides that a person who sells, furnishes, or offers
to sell or furnish a canister, tank, or receptacle containing
nitrous oxide to a minor under 18 years of age is guilty of a
misdemeanor, punishable by a fine of up to $2,500, imprisonment
in county jail for not more than one year, or both.
This bill provides that upon a person's second conviction of
selling or furnishing nitrous oxide to a minor, the court shall
order the suspension of the person's business license for up to
one year, unless the owner of the business license can
demonstrate a good-faith attempt to prevent illegal sales or
deliveries by the owner's employees. This business license
suspension provision will become operative on July 1, 2010.
This bill provides that this section shall not apply to
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California licensed medical or dental practitioners
administering nitrous oxide for medical or dental care.
This bill provides that nitrous oxide as used in this section
refers to N20, dnitrogen monoxide, dnitrogen oxide, nitrogen
oxide, and laughing gas.
This bill provides that the prohibition on sale of nitrous oxide
does not apply if the nitrous oxide is used as a propellant in a
food product.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
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<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
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reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
According to the author:
Remarkably, there is no current law that makes it
unlawful to sell or provide nitrous oxide to minors
despite it being life threatening and deleterious to
the health and safety of our youth.
Penal Code section 381b recognizes the lethal danger of
nitrous oxide abuse by making it unlawful for a person
to be found in possession of nitrous oxide or any
substance containing nitrous oxide with the intent to
use for the purpose of becoming under the influence.
This section does not adequately curtail access of
nitrous oxide to youth, and demographic studies confirm
that youth are most susceptible to inhalant abuse.
Current law makes it illegal for a youth to possess
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<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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nitrous oxide for purposes of intoxication, but does
not make it illegal for persons or commercial stores to
sell nitrous oxide to minors.
This bill would provide the same penalties for
furnishing nitrous oxide to minors as currently in the
penal code for other inhalants, per Section 381.
2. Use of Nitrous Oxide in Dentistry
Nitrous oxide, in combination with pure oxygen, is commonly
used for sedation of patients and pain relief during dental
procedures. The website of the American Academy of Dental
Pediatrics provides the following information on the use of
nitrous oxide in dental procedures for children:
Nitrous oxide/oxygen (N2O-O2) is a blend of two gases
-- oxygen and nitrous oxide. A fitted mask is placed
over the nose and, as the patient breathes normally,
uptake occurs through the lungs. At the end of
treatment, it is eliminated after a short period of
breathing oxygen and has no lingering effects.
[The patient] smells a faint, sweet aroma and
experience a sense of well-being and relaxation.
Since it may produce a feeling of giddiness or
euphoria, it is often called "laughing gas." Children
sometimes report dreaming and their arms and legs may
feel "tingly." It raises the pain threshold and may
even make the time appear to pass quickly.
Nitrous oxide/oxygen is perhaps the safest sedative in
dentistry. It is well tolerated. It has a rapid
onset, is reversible, can be adjusted in various
concentrations and is non-allergenic. Your child
remains fully conscious -- keeps all natural reflexes
-- when breathing nitrous oxide/oxygen. He/she will
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be capable of responding to a question or request.
Nitrous oxide/oxygen may also be used in combination
with other sedative agents.
3. Use of Nitrous Oxide in Food Preparation, Motor Sports and
Model Rockets
Nitrous oxide is commercially sold in a steel cylinder or
cartridge primarily as a whipping agent for use in a whip cream
dispenser and in some cooking sprays. Nitrous oxide is commonly
used in coffee shops and restaurants to make whipped cream as
its bacteriostatic properties keep bacteria from growing and
because nitrous oxide produces a lighter, fluffier whipped
cream.
Nitrous oxide is also used as an oxidizer in model rockets and
motor vehicle racing due to its low temperature and high oxygen
content.
4. Loss of Business License for up to One Year for Second
Conviction
This bill provides that where the defendant has been previously
convicted of sale of nitrous oxide to a minor, the sentencing
court shall order suspension of the defendant's business license
for up to one year "unless the owner of the business license can
demonstrate a good faith attempt to prevent" such illegal sales.
As previously drafted, the bill required suspension for a full
year.
The bill still raises the issue of judicial discretion as to a
mandatory suspension of some length of time. Suspension of the
defendant's license is mandatory unless the defendant
demonstrates reasonable efforts to prevent distribution of
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nitrous oxide to minors by the defendant's employees.
Suspension of a business license may mean that the owner must
close the business. Arguably, that would be a very severe
penalty for a misdemeanor.
Further, it appears that a defendant would be required at the
sentencing hearing - usually about one month after conviction -
to demonstrate his or good faith efforts to prevent illegal
sales following the initial conviction and up to the time of
sentencing in the second matter. Arguably, because the license
suspension provisions are explicitly stated in the section
defining this new crime, a defendant would be placed on notice
at the time of his or her first conviction that reasonable
efforts are required of him or her to prevent sales of nitrous
oxide to minors in the future. Without such reasonable efforts,
a second conviction would result in a license suspension.
SHOULD THE BILL PROVIDE THAT THE COURT MAY ORDER SUSPENSION OF
THE DEFENDANT'S BUSINESS LICENSE UNLESS THE DEFENDANT
DEMONSTRATES GOOD FAITH EFFORTS TO PREVENT SALES OF NITROUS
OXIDE TO MINORS?
5. Supreme Court Case on Providing Alcohol to a Minor Considers
Issues of Intent to Provide the Prohibited Item, Knowledge the
Person was a Minor, Strict Liability and Affirmative Defenses
Business and Professions Code Section 25658 provides that it is
a misdemeanor to sell, give or furnish alcohol to a person under
the age of 21, or to cause the selling, giving or furnishing of
alcohol to such a person. The California Supreme Court in In re
Jennings (2004) 34 Cal.4th 254, held that the prosecution need
not prove that the person obtaining the alcohol was underage.
(Id, at p. 281.) A defendant charged with providing or selling
alcohol to an underage person may, however, present an
affirmative defense that he or she honestly and reasonably
believed that the person who obtained the alcohol was over the
age of 21. The defendant has the burden of proving an
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affirmative defense. (Id, at 276-282.)<3>
Affirmative defenses are the exception, not the rule, in
criminal law. Typically, the prosecution must prove each
element of the offense. If the defendant simply establishes a
reasonable doubt about any of the elements, the defendant must
be acquitted - he or she need not prove anything.
A crime is generally described as the combination of a
prohibited act and a criminal state of mind, or mens rea. In
most cases, the prosecution must prove that the defendant
intended to obtain a particular result (specific intent) or
intended to do the act that constitutes the crime (general
intent). In other cases, the prosecution must prove that the
defendant had scienter - criminal knowledge. A scienter element
is usually described by stating that the defendant knew or
should have known a certain fact. For example, a person
receives a higher penalty where he or she, knowing that the
victim is over the age of 65, commits a specified crime. The
prosecution must prove beyond a reasonable doubt that the
defendant knew or should have known that the victim was over the
age of 65.
Crimes that do not include an intent or knowledge element are
called "strict liability" crimes. Strict liability crimes
typically concern health and welfare matters - contaminated food
for example. Because strict liability crimes include no element
of intent, knowledge or even criminal negligence, strict
liability crimes are typically no more than misdemeanors, often
with relatively small fines and no jail time. Strict liability
crimes are said to be strictly regulatory, and should not even
damage the defendant's reputation. (In re Jennings, supra, 34
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<3> This bill is modeled after Penal Code Section 380 which
makes it a misdemeanor to sell or furnish toluene to a minor.
Section 380 has unusual penalties - a jail term of between six
months and one year and a fine of between $1,000 and $2,500. As
there are no published or unpublished appellate cases
interpreting that law, it is unknown how courts would rule on
issues concerning punishment, intent, knowledge or affirmative
defenses in a prosecution under Section 380.
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Cal.4th at pp. 266-269.)
The court in Jennings stated that the modern trend is away from
strict liability, although alcohol consumption by underage
persons can produce the kind of harm addressed by strict
liability crimes. The court also noted that the penalties for
selling or furnishing alcohol to underage persons are relatively
low - fines from $250 to $1,000 and community service. Only
where a person suffers great bodily or death as a result of an
underage person's alcohol use does the person who provided the
alcohol face even a misdemeanor jail sentence of between six
months and one year. (Id, at pp. 267-280; Bus. & Prof. Code
25658.)
The court in Jennings did not find support in the legislative
history for a scienter element in the crimes for selling or
furnishing alcohol to underage persons. The court did, however,
note with significance the fact that a retailer, pursuant to the
express terms of Business and Professions Code Section 25660,
can avoid conviction for selling alcohol to an underage person
through an affirmative defense that the retailer demanded valid
identification. In keeping with the modern trend away from
strict liability, and consistent with the legislative history of
the law, the court essentially read an affirmative defense into
the crime of selling, giving, et cetera, alcohol to a person
under the age of 21 under circumstances where the underage
person causes death or great bodily injury. (Ibid.)
6. Intent, Knowledge and Affirmative Defense Issues Applied to
this Bill
The court in Jennings set out the following analytical framework
for determining whether a crime should include an element of
intent or knowledge:
(1) [T]he legislative history and context; (2) any
general provision on mens rea or strict liability
crimes; (3) the severity of the punishment provided
for the crime ('Other things being equal, the greater
the possible punishment, the more likely some fault is
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required'); (4) the seriousness of harm to the public
that may be expected to follow from the forbidden
conduct; (5) the defendant's opportunity to ascertain
the true facts (The harder to find out the truth, the
more likely the legislature meant to require fault in
not knowing); (6) the difficulty prosecutors would
have in proving a mental state for the crime (The
greater the difficulty, the more likely it is that the
legislature intended to relieve the prosecution of
that burden so that the law could be effectively
enforced); [and] (7) the number of prosecutions to be
expected under the statute (The fewer the expected
prosecutions, the more likely the legislature meant to
require the prosecuting officials to go into the issue
of fault). (Id, at p. 268; internal quotation marks
omitted.)
Jennings noted that selling or providing alcohol to minors -
which can be very dangerous - results in a relatively light
penalties. Only where someone suffers death or great bodily
injury as a result of the use of alcohol by an underage person
can jail be imposed. Fines range from $250 to $1,000 (Bus. &
Prof. Code 25658.) In large part because the penalties for
most alcohol offenses are relatively light, the court in
Jennings did not find that an intent or knowledge requirement
was necessary. (In re Jennings, supra, 34 Cal.4th at p. 269.)
In contrast to the relatively light penalties for alcohol
offenses, the jail penalty under this bill (up to one year in
jail) is twice that of a standard misdemeanor. The maximum fine
($2,500) is more than twice the amount for a standard
misdemeanor. Further, the crime requires a business license
suspension for a second conviction. This is a relatively
significant penalty structure. No injury or harm need have
occurred because the minor obtained nitrous oxide. As noted by
the court in Jennings, the more serious the penalty for a crime,
the more likely the crime should be interpreted to include an
intent or scienter requirement.
It can be argued that the other relevant factors noted in the
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Jennings decision appear to indicate that a scienter element
should be included in this new crime: Sales of nitrous oxide
are likely to be relatively rare, particularly in comparison to
sales of alcohol to minors. (Factor No. 7.) Widespread public
harm is not likely to occur from sale of nitrous oxide, again in
contrast with the serious harms caused to and by underage
alcohol use. (Factor No. 4.) While it may be difficult to
determine whether a person is over the age of 18 simply by
appearance, an adult would be expected to have identification.
However, the use of fake, but convincing, identification cards
is relatively common. Proof that a defendant should have known
a purchaser of nitrous oxide was under the age of 18 will likely
turn on whether or not the defendant asked for identification,
and whether the identification card appears to be valid.
(Factor Nos. 5 and 6.)
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The crime created by this bill does not include a specific
intent or scienter element. The prosecution need not prove that
the defendant knew or should have known that the person buying
or obtaining the nitrous oxide was a minor. It appears,
consistent with the decision in Jennings, that a defendant would
likely only have an affirmative defense that he or she
reasonably believed the person obtaining the nitrous oxide was
an adult. Note, however, that the bill does not specifically
provide for an affirmative defense. The court in Jennings spent
dozens of pages determining that issue as concerns providing of
alcohol to underage persons. The questions are thus raised
whether or not the bill should specifically state that an
affirmative defense applies. The question is also raised as to
whether this new crime should include a scienter requirement.
Arguably, selling or furnishing nitrous oxide to a minor is
quite distinguishable from selling alcohol to a person under the
age of 21. Signs and notices that alcohol cannot be sold or
given to persons under the age of 21 are ubiquitous. Stores
routinely post the date after which one must have been born such
that he or she may purchase alcohol. A person must obtain a
specific license to sell alcoholic beverages. The license
confers a substantial commercial benefit, as it limits
competition in a business that offers a widely desired product.
Arguably an alcohol sales license confers the benefits and
imposes a special duty to prevent distribution of alcohol to
underage persons. No reasonable person is unaware that alcohol
cannot be sold or given to a person under the age of 21. The
ban on sales of nitrous oxide to minors will not be so well
known.
SHOULD THIS BILL INCLUDE AN ELEMENT THAT THE DEFENDANT KNEW, OR
SHOULD HAVE KNOWN, THAT THE PERSON BUYING OR OBTAINING THE
NITROUS OXIDE WAS A MINOR?
CONSISTENT WITH A CALIFORNIA SUPREME COURT DECISION CONCERNING
THE CRIME OF PROVIDING ALCOHOL TO MINORS, SHOULD THE BILL
SPECIFICALLY DESCRIBE AN AFFIRMATIVE DEFENSE THAT THE DEFENDANT
REASONABLY BELIEVED THAT THE PERSON WHO OBTAINED NITROUS OXIDE
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WAS AN ADULT?
7. Amendments to Provide for an Affirmative Defense, Define a
Standard Misdemeanor and Direct the Court to Consider
Community Service as a Condition of Probation
This bill was presented in Committee on June 23, 2009. No vote
was taken, but the Committee, the author and interested parties
discussed the issue of an appropriate penalty for this newly
defined crime. The discussions also considered issues of
intent, scienter and affirmative defenses. Prosecutors noted
that if the sale or furnishing of nitrous oxide to a minor did
not involve a "sting," the minor involved in the offense was
also committing a crime. As such, these offenses could be
particularly difficult to prosecute if the minor could not be
called as a witness.
In discussions following the hearing, interested parties noted
that in the analogous circumstances of selling alcohol to a
person under the age of 21, the defendant may present an
affirmative defense that he or she reasonably believed that the
person was of age to buy alcohol. It was further noted that the
alcohol crimes typically direct the court to order the defendant
to perform community service.
To address the above matters, the author has agreed to amend the
bill to include the following provisions:
The defendant may present an affirmative defense that he
or she reasonably believed the minor involved in the
offense was an adult.
The offense will be defined as a standard misdemeanor,
with a maximum jail term of six months and a maximum fine
of $1,000.
The court shall consider ordering a defendant to perform
community service as a condition of probation.
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A technical amendment will be made to eliminate an
incorrect reference to "offenses" defined in the section,
as the bill defines a single crime.
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