Health and Safety Code § 12085 – Making, Possessing or Transporting Explosives

Health and Safety Code § 12085 HS prohibits manufacturing, possessing, or transporting illegal explosives. A violation is a misdemeanor punishable by up to 6 months in jail and fines of up to $1000.00.

The language of the code section states that:

12085. 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, laws, or regulations apply.

Illegal “explosives” include such things as:

• Dynamite,
• Pipe bombs,
• Certain illegal fireworks, and
• Blasting caps.

Examples of violations of this statute:

• After purchasing an illegal firework out of state, Michael drives it back into California via his car.
• Diego makes a pipe bomb after watching an online video on the matter;
• Wendy takes her boyfriend’s blasting caps and agrees to store them in her garage.

Defenses

Luckily, there are several legal defenses that a person can raise if accused of a crime under Health and Safety Code 12085. These include showing that an accused party:

• Did not make, possess, or transport an “explosive;”
• Acted in conformity with a city or county ordinance; and,
• Was arrested without “probable cause.”

Penalties

A violation of California Health and Safety Code 12085 is charged as a misdemeanor, as opposed to a California felony or an infraction.

As a misdemeanor, the crime is punishable by:

• Imprisonment in a county jail for up to six months; and/or,
• A fine of up to $1,000.

Our California criminal defense attorneys will address the following in this article:

• 1. Is it illegal to make, possess or transport explosives?
• 2. Are there defenses to Health & Safety Code 12085 HS?
  • 2.1 The item wasn’t an explosive
  • 2.2 The conduct was authorized by a local ordinance
  • 2.3 The police acted without probable cause
• 3. What are the penalties?
• 4. Related Offenses
  • 4.1 California Laws Against Illegal Fireworks – HS 12500-12728
  • 4.2 Possessing Destructive Devices or Explosives – PC 18710
  • 4.3 Possessing Materials to Make a Destructive Device – PC 18720

1. Is it illegal to make, possess or transport explosives?

California Health and Safety Code 12085 states:

No person shall make, possess, or transport any explosive…¹

Under California law, an “explosive” is any substance, or combination of substances, that are primarily used for detonation or rapid combustion.²

Some examples of an explosive include:

• Dynamite,
• Pipe bombs,
• “Dangerous fireworks” (please see section 4.1 below),
• Nitroglycerine,
• Black powder, and
• Blasting caps.³

Please note that an exception under HS 12085 makes it permissible to make, possess, or transport an explosive. A person may legally perform one of these acts if it is authorized under a city and/or county ordinance.⁴

For example, Rob works near the Snow Summit Ski Resort. He works on a crew that is responsible for avalanche control. One of his duties is to possess dynamite and use it to ward off excessive snow accumulations. A local ordinance authorizes the possession, use, and transportation of dynamite for this purpose. Rob is not guilty under HS 12085 if he handles and uses dynamite.

2. Are there defenses to Health & Safety Code 12085 HS?

A person accused under HS 12085 can challenge the accusation by raising a legal defense. A good defense can often get a charge reduced or even dismissed. Please note, though, that it is critical for an accused to hire an attorney to get the most effective defense.

Three common defenses to accusations under HS 12085 are:

1. The item wasn’t an explosive;
2. The conduct was authorized by a local ordinance; and/or,
3. The police acted without probable cause.

2.1. No Explosive

Recall that California law provides a specific definition for “explosive.” Any object used in an HS 12085 crime has to meet this definition. Therefore, it is a perfectly valid defense for an accused to show that the object he made, possessed, or transported (maybe, for example, a party popper) did not fall under the definition of “explosive.”

2.2. Protected Act Under an Ordinance

As discussed above, a person can make, possess, and transport an explosive if that act is authorized under a city and/or county ordinance. This means a person cannot be charged under Health and Safety Code 12085 if:

• He uses, or performs some act with, an explosive; and,
• That use, or act, is authorized by a legal ordinance.

2.3. No Probable Cause

This line of defense tries to exclude evidence that is being used against a defendant for an HS 12085 violation.

California law says that a police officer must have probable cause to

• detain or
• arrest a suspect.

“Probable cause” essentially means that there is a reasonable belief that someone committed a crime (based on all of the circumstances).

If a person was stopped or arrested without probable cause, then any evidence obtained following the improper stop/arrest could get excluded from the case. This exclusion could result in the dismissal or reduction of the charges.

3. What are the penalties?

Under Health and Safety Code 12085 HS, the making, possessing, or transporting of an explosive is a misdemeanor offense.

As such, it is punishable by:

• Imprisonment in the county jail for up to six months; and/or,
• A fine of up to $1,000.⁵

In lieu of imprisonment, a judge has the discretion to impose misdemeanor probation, or “summary” or “informal” probation.

4. Related Offenses

There are three crimes related to HS 12085 crimes. These are:

1. California laws against illegal fireworks – HS 12500-12728;
2. Possessing Destructive Devices or Explosives – PC 18710; and,
3. Possessing materials to make a destructive device – PC 18720.

4.1. California Laws Against Illegal Fireworks – HS 12500-12728

California Health and Safety Code sections 12500-12728 are the State’s laws against illegal fireworks.

California fireworks laws divide fireworks into two categories: “dangerous fireworks” and “safe and sane” fireworks.⁶

“Dangerous” fireworks include large items such as rockets and sparklers bigger than ten inches in length or one-quarter inch in diameter.

“Safe and sane” fireworks include small items such as fountains, spinners, and snap caps.

Dangerous fireworks are always illegal in California except when used by someone with a special display license.⁷

Subject to local restrictions, safe and sane fireworks may be sold, purchased, and used by the general public. But only licensed retailers can sell them, and they can do so only from June 28 to July 6 each year.⁸

Most violations of California’s fireworks laws are misdemeanors. Penalties can include:

• Up to one year in county jail, and/or
• A fine of up to $1,000.⁹

But possession of large quantities of dangerous fireworks can be charged as a California felony. Punishment for a felony fireworks violation can include:

• Up to three years in the California state prison, and
• Fines as high as $50,000.¹⁰

4.2. Possessing Destructive Devices or Explosives – PC 18710

Penal Code 18710 PC makes it a crime to possess a “destructive device.” Destructive devices include things like:

• Bombs,
• Grenades, and
• Explosive missiles.¹¹

To be convicted under Penal Code 18710, a person must possess a destructive device and know that:

• He possessed the device (as opposed to someone planting it); and,
• The device was a destructive device.¹²

Possession under PC 18710 is a “wobbler” offense, meaning that it can be charged as either a California misdemeanor or a felony.

Misdemeanor penalties for possession include:

• Up to one year in county jail; and/or,
• A fine of up to $1,000.¹³

The felony penalties for possession include:

• Imprisonment in the state prison for up to three years; and/or,
• A fine of up to $10,000.¹⁴

4.3. Possessing Materials to Make a Destructive Device – PC 18720

Possessing the materials necessary to make a destructive device is a serious California felony under Penal Code 18720 PC.

A prosecutor must prove two elements to show that a person is guilty under PC 18720. These are that:

1. The defendant possessed a substance or material or combination of substances and materials; and
2. When he possessed those items, the defendant intended to make an explosive or a destructive device.¹⁵

Possession of materials for making explosives or a destructive device is a California felony.¹⁶

The potential penalties are:

• Imprisonment in the county jail for up to four years; and/or,
• A fine of up to $10,000.¹⁷

For additional help…

If you or someone you know has been accused of violating California Health and Safety Code 12085 HS we invite you to contact us. We can be reached 24/7. (For similar accusations in Colorado, please visit our article on Possession of Explosives, Chemical, Biological, or Radiological Weapons (Colorado 18-12-109 C.R.S.))

Legal References: