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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

Utah Criminal Defense LawyerPossession 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.

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Attorney Stephen Howard practices as part of the Canyons Law Group, LLC and Stephen W. Howard, PC.

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