Hoax Explosive Or Incendiary Device Or Chemical, Biological Or Radiological Weapon in Colorado

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Statute for 18 – 12 – 109 – Hoax Explosive Or Incendiary Device Or Chemical, Biological Or Radiological Weapon

StatuteHere is the charge you are facing:

18-12-109. Possession, use, or removal of explosives or incendiary devices – possession of components thereof – chemical, biological, and nuclear weapons – persons exempt – hoaxes

(1) As used in this section:

(a) (I) “Explosive or incendiary device” means:

(A) Dynamite and all other forms of high explosives, including, but not limited to, water gel, slurry, military C-4 (plastic explosives), blasting agents to include nitro-carbon-nitrate, and ammonium nitrate and 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 or det-cord or primacord, picric acid explosives, T.N.T. and T.N.T. mixtures, and nitroglycerin and nitroglycerin mixtures;

(B) Any explosive bomb, grenade, missile, or similar device; and

(C) Any incendiary bomb or grenade, fire bomb, or similar device, including any device, except kerosene lamps, 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 such flammable liquid or compound and can be carried or thrown by one individual acting alone.

(II) “Explosive or incendiary device” shall not include rifle, pistol, or shotgun ammunition, or the components for handloading rifle, pistol, or shotgun ammunition.

(b) (I) “Explosive or incendiary parts” means any substances or materials or combinations thereof which have been prepared or altered for use in the creation of an explosive or incendiary device. Such substances or materials may include, but shall not be limited to, any:

(A) Timing device, clock, or watch which has been altered in such a manner as to be used as the arming device in an explosive;

(B) Pipe, end caps, or metal tubing which has been prepared for a pipe bomb;

(C) Mechanical timers, mechanical triggers, chemical time delays, electronic time delays, or commercially made or improvised items which, when used singly or in combination, may be used in the construction of a timing delay mechanism, booby trap, or activating mechanism for any explosive or incendiary device.

(II) “Explosive or incendiary parts” shall not include rifle, pistol, or shotgun ammunition, or the components for handloading rifle, pistol, or shotgun ammunition, or any signaling device customarily used in operation of railroad equipment.

(2) Any person who knowingly possesses, controls, manufactures, gives, mails, sends, or causes to be sent an explosive or incendiary device commits a class 4 felony.

(2.5) Any person who knowingly possesses, controls, manufacturers, gives, mails, sends, or causes to be sent a chemical, biological, or radiological weapon commits a class 3 felony.

(3) Subsection (2) of this section shall not apply to the following persons:

(a) A peace officer while acting in his official capacity transporting or otherwise handling explosives or incendiary devices;

(b) A member of the armed forces of the United States or Colorado National Guard while acting in his official capacity;

(c) An authorized employee of the office of active and inactive mines in the division of reclamation, mining, and safety while acting within the scope of his or her employment;

(d) A person possessing a valid permit issued under the provisions of article 7 of title 9, C.R.S., or an employee of such permittee acting within the scope of his employment;

(e) A person who is exempt from the necessity of possessing a permit under the provisions of section 9-7-106 (5), C.R.S., or an employee of such exempt person acting within the scope of his employment;

(f) A person or entity authorized to use chemical, biological, or radiological materials in their lawful business operations while using the chemical, biological, or radiological materials in the course of legitimate business activities. Authorized users shall include clinical, environmental, veterinary, agricultural, public health, or radiological laboratories and entities otherwise licensed to possess radiological materials.

(4) Any person who knowingly uses or causes to be used or gives, mails, sends, or causes to be sent an explosive or incendiary device or a chemical, biological, or radiological weapon or materials in the commission of or in an attempt to commit a felony commits a class 2 felony.

(5) Any person who removes or causes to be removed or carries away any explosive or incendiary device from the premises where said explosive or incendiary device is kept by the lawful user, vendor, transporter, or manufacturer thereof, without the consent or direction of the lawful possessor, commits a class 4 felony. A person convicted of this offense shall be subjected to a mandatory minimum sentence of two years in the department of corrections.

(5.5) Any person who removes or causes to be removed or carries away any chemical, biological, or radiological weapon from the premises where said chemical, biological, or radiological weapon is kept by the lawful user, vendor, transporter, or manufacturer thereof, without the consent or direction of the lawful possessor, commits a class 3 felony. A person convicted of this offense shall be subject to a mandatory minimum sentence of four years in the department of corrections.

(6) Any person who possesses any explosive or incendiary parts commits a class 4 felony.

(6.5) Any person who possesses any chemical weapon, biological weapon, or radiological weapon parts commits a class 3 felony.

(7) Any person who manufactures or possesses or who gives, mails, sends, or causes to be sent any false, facsimile, or hoax explosive or incendiary device or chemical, biological, or radiological weapon to another person or places any such purported explosive or incendiary device or chemical, biological, or radiological weapon in or upon any real or personal property commits a class 5 felony.

(8) Any person possessing a valid permit issued under the provisions of article 7 of title 9, C.R.S., or an employee of such permittee acting within the scope of his employment, who knowingly dispenses, distributes, or sells explosive or incendiary devices to a person who is not authorized to possess or control such explosive or incendiary device commits a class 4 felony.

Case Law

When you look at the Statute, you may have questions about definitions of certain words or how the Colorado Court will interpret certain phrases.  To answer these questions, Defense Attorney turn to "case law."  That is, lawyers look at previous cases to determine how these words and phrases should be defined and interpreted. The best way to locate caselaw for free is to go to google scholar and search for legal opinions involving your charges from Colorado courts. Remember to talk to your attorney about any issues in your case and how the lawyer believes that the issues should be handled.


Colorado Penalties for Hoax Explosive Or Incendiary Device Or Chemical, Biological Or Radiological Weapon

Penalties

The charge of Hoax Explosive Or Incendiary Device Or Chemical, Biological Or Radiological Weapon, is categorized as a:

F5

Click here to find out how much jail time is associated with this penalty.

How to Use This Information

After you have hired a Colorado Defense Attorney, you will need to sit down with him to talk about the strengths and weaknesses of your case.  To begin this process, you should think about what the prosecutor will attempt to show in order to say that you are guilty. This involves analyzing the statute language above as well as the jury instructions (which is the set of instructions that the jury will use to understand the law). This will allow you to get a better idea of how you can attack the prosecutor’s case and build your own case. So to begin, you should understand that the prosecutor will need to prove certain things beyond a reasonable doubt for you to be found guilty.  These things are called “elements”.

The jury will be notified of the elements through a set of instructions called “Jury Instructions.” The Jury Instructions will be crafted by your attorney and the prosecutor. Your Colorado Defense Attorney will mold the jury instructions to your case, adding facts that are specific to the case and omitting unnecessary parts of the instructions.

Please find the model jury instruction for Hoax Explosive Or Incendiary Device Or Chemical, Biological Or Radiological Weapon below. These will be adapted by your Colorado Attorney for your case.

The elements of the crime of a hoax [explosive or incendiary device] [chemical, biological or radiological weapon] are: 1. That the defendant, 2. in the State of Colorado, at or about the date and place charged, 3. knowingly, 4. [[gave] [mailed] [sent] [caused to be sent] [manufactured] [possessed] any false, facsimile, or hoax [explosive or incendiary device] [chemical, biological or radiological weapon], 5. to another person.] -or- 4. [placed a false, facsimile, or hoax [explosive or incendiary device] [chemical, biological or radiological weapon], 5. in or upon any real or personal property.] 6. [without the affirmative defense in instruction number __________.] After considering all the evidence, if you decide the prosecution has proven each of the elements beyond a reasonable doubt, you should find the defendant guilty of hoax [explosive or incendiary device] [chemical, biological or radiological weapon]. After considering all the evidence, if you decide the prosecution has failed to prove any one or more of the elements beyond a reasonable doubt, you should find the defendant not guilty of [hoax explosive or incendiary device] [chemical, biological or radiological weapon]. NOTES ON USE Delete inapplicable bracketed material. When this instruction is used, the applicable definitions of “explosive or incendiary devices must be given. The statute fails to prescribe a mens rea for the offense. In the committee’s opinion, the offense necessarily requires at least general intent. For this reason, “knowingly” has been used as the mens rea for this instruction. See ?18?1?503(2), C.R.S. (in the absence of specific designation in the statute, a mens rea may nevertheless be required if the prohibited conduct necessarily involves such a mental state).

To begin the process of analyzing your case, think about your case from the perspective of the prosecutor.  Think about the facts that the prosecutor will have to prove to establish each element. Next, sit down with your CO Defense Attorney and talk about some of the legal ways that you can use to counter the prosecutor’s evidence.  Talk to your attorney about whether he thinks any of the prosecutor’s evidence can be kept out of court.  For example, if you were illegally searched, your attorney may be able to keep the things that were found, as a result of that illegal search, out of court.  Additionally, talk to your attorney about whether you have any defenses to Hoax Explosive Or Incendiary Device Or Chemical, Biological Or Radiological Weapon.

Important Notes:

Don’t Forget about Immigration:

If you are not a U.S. citizen, be sure to ask your attorney whether your charges will trigger deportation if you are found guilty or plea to the charge.

Good Luck!

The information in this post is for informational purposes only and should not be construed as legal advice or as the creation of an attorney-client relationship. For legal advice, please contact an Attorney.

Written by

Nathaniel has worked in criminal law on both sides of the aisle spending time working for the prosecution as well as the defense. Most recently Nathaniel has represented individuals in violent felonies and drug cases. Prior to this work, Nathaniel handled DWIs, Domestic Violence Cases, Property Crimes, and White Collar Crimes. On the prosecutorial side, Nathaniel has most notably worked in Bosnia helping to prosecute individuals who committed war crimes and crimes against humanity in the Bosnian War from 1993-1995. In particular, Nathaniel helped in the prosecution of military leaders who arranged for the organized murders and rapes of innocent civilians in various towns in Bosnia. Nathaniel is a graduate of the University of Texas School of Law, Northwestern University, and Phillips Exeter Academy. Google Profile: Nathaniel Baca