Let's review the crime of manufacturing, possessing, or transporting explosives codified in California Health & Safety Code 12085 HS.
California has strict laws regarding explosives, and not just regarding their use. As volatile substances, explosives can pose a danger to the public by their very existence or by the act of making or transporting them unsafely.
For this reason, under HS 12085, it is illegal to make, possess, or transport explosives in a manner that violates state or local ordinances.
Illegal explosives could include dynamite, pipe bombs, blasting caps, dangerous fireworks, nitroglycerine, and black powder.
HS 12085 says, "No person shall make, possess, or transport any explosive in a manner prohibited by this part or prohibited by any ordinance of a city, county, or city and county, or prohibited by the laws or regulations governing a harbor in those areas where such ordinance, rules, or regulations apply."
Violating HSC 12085 is a misdemeanor offense in California. If convicted, you could face up to 6 months in county jail and a fine of up to $1,000. Instead of imprisonment, a judge can impose misdemeanor probation, called informal probation.
Understanding the Law is Crucial
As noted, Health & Safety Code 12085 HS prohibits individuals from manufacturing, possessing, or transporting explosives in a manner prohibited by any city or county law ordinance or by the laws or regulations governing a harbor in those areas where such ordinances, rules, or restrictions exist.
For clarity, the law does not broadly ban making, having, or transporting explosives; rather, it makes it illegal to do so "in a manner" that violates the applicable rules of that jurisdiction.
For instance, if local ordinances mandate specific safety measures for transporting fireworks, adhering to these rules is crucial to avoid violating HSC 12085. Safety should always be a top priority.
What Constitutes an Explosive?
For purposes of this law, Health and Safety Code 12000 HS broadly defines an "explosive" as "any substance, or combination of substances, the primary or common purpose of which is detonation or rapid combustion, and which is capable of a relatively instantaneous or rapid release of gas and heat..."
Some common examples include the following:
- Dynamite and TNT: Commonly recognized explosives used in demolition and construction.
- Plastic explosives: Such as C-4, often associated with military use.
- Improvised explosive devices (IEDs): Any homemade bombs or similar devices.
- Fireworks: Certain types of powerful fireworks that exceed consumer-grade limits.
- Blasting caps and detonators: Devices used to initiate explosions.
- Grenades and bombs: Military-grade or makeshift explosive devices.
What is an Exception to the Rule?
The wording of HSC 12085 carries an inherent exception: "in a manner prohibited by this part or prohibited by any ordinance..."
For the most part, if local ordinances regarding the handling of explosives are different from state regulations regarding the handling of explosives, the state typically defers to the local rules.
Thus, if local laws permit you to possess or transport a specific type of explosive, you should be exempt from prosecution under HSC 12085, even if state law restricts or prohibits it. Common examples of exceptions might include:
- Differing rules among local communities regarding acceptable consumer use of fireworks.
- Local ordinances permitting ski resorts to possess TNT for avalanche control.
- Allowing local film productions to use otherwise illegal pyrotechnics under California law.
What Are Some Examples?
EXAMPLE 1: John is an amateur mining enthusiast who uses dynamite to excavate a plot of land he owns in rural California. He purchases several sticks of dynamite from an online seller and needs to obtain the necessary permits or licenses. John stores the dynamite in his garage, unaware that his activities violate state laws regarding explosives. John can be charged with a crime under HSC 12085.
EXAMPLE 2: Samantha is a licensed pyrotechnician hired by the city to perform a fireworks display for the Fourth of July celebration. She obtains the necessary permits and follows all local ordinances regulating fireworks use, transport, and storage.
Samantha transports the fireworks to the event site in a properly marked vehicle and stores them according to safety regulations. Even if Samantha's activities violate state rules regarding the handling of these fireworks, she would not be charged under HSC 12085 because she is authorized under local ordinances.
What Are Related Crimes?
- Possessing destructive devices or explosives - Penal Code 18710 PC. This law makes it a crime to have a "destructive device," including such items as bombs, grenades, and explosive missiles. To convict, it must be proven that you knew the item was a destructive device. This wobbler crime (misdemeanor or felony) carries up to three years in state prison and a fine of up to $10,000.
- Possessing materials to make a destructive device - Penal Code 18720 PC. This is a serious felony, but the district attorney must prove certain factors to convict you. They must show that you possessed a substance or material or a combination of substances and materials and that when you possessed these items, you intended to make an explosive or a destructive device. If convicted, you face up to four years in jail and a fine of up to $10,000.
- California laws against illegal fireworks - Health and Safety Codes 12500-12728. These laws divide fireworks into "dangerous fireworks" and "safe and sane" fireworks. Dangerous fireworks include oversized items such as rockets. Safe and sane fireworks include small spinners and snap caps. Most violations are misdemeanors, but possessing large quantities of dangerous fireworks can be charged as a felony that carries up to three years in prison and a fine of up to $50,000.
What Are the Common Defenses?
A skilled California criminal defense attorney can employ several strategies to challenge accusations under Health & Safety Code 12085 HS. Some common ones include:
- Lack of Knowledge: Arguing that you did not know the material was explosive, that you were unaware of its presence, or that you legitimately believed you were handling the materials by the law.
- Authorization: Demonstrating that you had the necessary permits or were in compliance with local ordinances regarding the handling of the explosives and, therefore, are exempt from prosecution under HSC 12085.
- Illegal Search and Seizure: If law enforcement obtained evidence against you through an illegal search and seizure, your attorney can challenge the legality of those actions and potentially get the evidence thrown out.
- No Explosive. Any item used in an HS 12085 offense must meet the definition of an explosive. Perhaps we can show that the object you made, possessed, or transported did not fall under the definition of an "explosive."
Contact our criminal defense law firm for more information. Eisner Gorin LLP is based in Los Angeles, CA.
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