Dry Ice Bombs - Utah Criminal Law
Are dry ice bombs illegal under Utah criminal law?
A two-liter
soda bottle filled partially with water, when enough dry ice (frozen
carbon dioxide) is added, will eventually burst and can cause a
startlingly loud noise and potential damage or injury. Commonly
referred to as a "dry ice bomb," creating or using this type of device
can potentially lead to criminal charges in Utah. If you are facing
criminal prosecution in Utah, having the assistance of an experienced
defense attorney is critical.
Contact us today to
see how we can help you.
Defining an Explosive Device - Utah Code 76-10-306
The
section of the Utah Code that addresses criminal penalties for
possession of an explosive has some ambiguities. There are potential
arguments against the statute as being unconstitutionally vague. But
perhaps the stronger argument is that a dry ice "bomb" simply doesn't
fall within the statutory definition required for a criminal conviction
under Utah Code 76-10-306. A strict reading of that statute's language
suggests that a plastic bottle filled with frozen carbon dioxide simply
does not qualify as an "explosive,
chemical, or incendiary device."
The definition of "explosive, chemical, or incendiary device" provided
under
Utah Code 76-10-306 (as of 2017) is provided at the bottom of this
page. Consider the following analysis and examples in
determining
whether dry ice in a plastic soda bottle meets the required statutory
definition.
Subsections (i) and
(iii) list a number of
specific examples - almost all of which specifically refer to flammable
substances or chemical mixtures. A dry ice "bomb" does not fit under
either subsection (i) or (iii).
Subsection (i) very clearly refers to "explosives" in the traditional
and ordinary sense of the word ("dynamite and all other forms of high
explosives"). It then lists a number of examples of specific
explosives, with a catchall provision at the end that includes "any
other chemical mixture intended to explode with fire or force."
Subsection (iii) refers to "any incendiary bomb, grenade, fire bomb,
chemical bomb, or similar device. . . . " It then describes what other
kinds of "device" are covered under that subsection - requiring that
such devices must include "a breakable container including a flammable
liquid or compound and a wick . . . or any breakable container which
consists of or includes a chemical mixture that explodes. . . ."
(This describes a Molotov cocktail or a pipe bomb quite well.)
Dry ice is just frozen CO2. When put in a bottle, it does not burn.
It is not a chemical mixture and no chemical reaction occurs as the CO2
warms. Technically, the CO2 goes through a process of
sublimation, where
the carbon dioxide undergoes a change from a solid state directly to a
gaseous state - skipping the liquid state altogether. (But the term
"melting" is often used casually to describe the process.) As the CO2
turns from a solid to a gas, the pressure inside the bottle increases
until it bursts. If
water is added to the bottle, the relative warmth of the water
increases the speed of the phase change. And whereas the water does not
compress
like a gas (e.g. room temperature CO2), the addition of water makes it
easier to reach the bursting point more quickly . . . and with a louder
resulting sound.
Similar events occur when a person takes can or bottle filled with
ordinary soda (root beer, cola, etc.) and shakes it till it starts
spraying. Unlike the melting of dry ice, when shaking a can or bottle
of soda the CO2 in the soda is coming out of solution until the
pressure builds to a point that the can or bottle can no longer contain
it. The can or bottle then bursts - sometimes spraying soda all over
and sometimes making a bit of noise. It is not as loud or impressive as
a dry ice "bomb." But it involves essentially
the same principles - the pressure of a gas inside a sealed container
increases until the container bursts.
Dry ice placed in a bottle does not involve the burning of anything
flammable and it does not involve a chemical mixture or chemical
reaction. It is a physical change in the state of the CO2. The frozen
CO2 molecules that make up dry ice are the same CO2 molecules that
become a gas as the dry ice "melts." No chemical change has occurred.
The processes involved in a dry ice "bomb" do not seem to fit the
definitions required under either subsection (i) or subsection (iii).
Subsection (ii) of the statute perhaps provides the best
prosecutor's argument that a dry ice bomb should Looking next at
subsection (ii), this list is relatively short, and
includes "any explosive bomb, grenade, missile, or similar device." But
this group has to be considered in the context of the rest of the
statute. When a broad or catchall term is used within a list of
specific items, the legal principle of
ejusdem generis
requires that the
catchall provision must be “understood as restricted to include things
of the same kind, class, character, or nature as those specifically
enumerated." The Utah Supreme Court opinion in
State v. Bagnes
provides
a good analysis of the principles and analysis involved in evaluating
terms under
ejusdem
generis.
If melting dry ice in a bottle is interpreted as being "an explosive
bomb" then it becomes difficult to know where to draw the line. Are
water
balloons to be criminalized and treated as explosives? A container
(balloon)
is filled with water and air, with a sufficient degree of pressure that
the
container will burst (or explode) upon impact with another surface. Is
a "rocket" fueled by baking soda and vinegar criminalized under this
statute? What
about kids doing a science experiment where they put baking soda in a
balloon with some vinegar, tie off the top, and wait for the balloon to
pop? And then for those of us old enough to remember "film" cameras -
you could make neat little Alka Seltzer "rockets" by putting a chunk of
Alka Seltzer in the film canister with some water, snap the top on, put
it upside down on the sidewalk and wait for the thing to explode and
blast off. (Depending on how high you get the canister to go, it could
be viewed either as a bomb or perhaps as a missile.)
Alka Seltzer rockets and the baking soda and vinegar balloons both
involve chemical
reactions that, when conducted withing a sealed container, can
technically result in an "explosion" of sorts. But these are not the
things that the legislature likely had in mind when they drafted the
statute. The definition and examples are listed below. And the
legislature really seemed to have been concerned with things like TNT,
dynamite, detcord, blasting caps, grenades, Molotov cocktails, etc.
Placing dry ice in a sealed bottle with water can be dangerous. And
there are all kinds of reasons not to do it. Doing it in public is
probably punishable as disorderly conduct. If such a device were used
around people, it could probably be charged as reckless endangerment.
If it was used to intentionally damage property, it could probably be
charged as criminal mischief. If it were thrown at a person with the
intent to cause injury it could probably be charged as aggravated
assault.
But it just doesn't seem to fit the definition of provided in the
statute. And it shouldn't be charged as a second degree felony for
possession of an explosive.
Following is the statutory definition.
Utah Code 76-10-306:
(1) As used in this section:
(a) "Explosive, chemical, or incendiary
device" means:
(i) dynamite and all other forms of high
explosives, including water gel, slurry, military C-4 (plastic
explosives), blasting agents to include nitro-carbon-nitrate, ammonium
nitrate, fuel oil mixtures, cast primers and boosters, R.D.X.,
P.E.T.N., electric and nonelectric blasting caps, exploding cords
commonly called detonating cord, detcord, or primacord, picric acid
explosives, T.N.T. and T.N.T. mixtures, nitroglycerin and nitroglycerin
mixtures, or any other chemical mixture intended to explode with fire
or force;
(ii) any explosive bomb, grenade,
missile, or similar device; and
(iii) any incendiary bomb, grenade, fire
bomb, chemical bomb, or similar device, including any device, except
kerosene lamps, if criminal intent has not been established, which
consists of or includes a breakable container including a flammable
liquid or compound and a wick composed of any material which, when
ignited, is capable of igniting the flammable liquid or compound or any
breakable container which consists of, or includes a chemical mixture
that explodes with fire or force and can be carried, thrown, or placed.
Finding a Criminal Defense Attorney

Possession
or use of an explosive device in Utah is a serious felony charge that
can have life-long repercussions. If
you are facing prosecution, having the assistance of an
experienced criminal defense
attorney is critical. Choosing the
best
attorney for your case is perhaps the most important decision
you will make. The right defense
strategy
and the right
defense attorney
can make all the difference.
Contact us today to
see how we can help you.