§ 18-12-109 CRS – Possession of Explosives, Chemical, Biological, or Radiological Weapons in Colorado

Section § 18-12-109 of the Colorado Revised Statutes (CRS) makes it a felony to knowingly possess, steal, control, manufacture, give, mail, send, or cause to be sent:

• a bomb or other explosive or incendiary device or any part for such devices,
• a chemical, biological, or radiological weapon or any part for such weapon, or
• a false, facsimile, or hoax explosive or incendiary device or a faux chemical, biological, or radiological weapon.

Penalties for explosives, incendiaries, and WMDs

Consequences of possession or involvement with explosive devices or weapons of mass destruction (“WMDs”) depend on the device and what you intend to do with it.

However, it is always a serious felony, which can get you sent to prison for 2 to 24 years or more if you use it to commit a crime. You may also be penalized with a fine in the amount of up to $1,000,000 for the most serious offenses.

Lawful possession of explosive, incendiary or biological weapons

Certain people may lawfully possess weapons otherwise prohibited under 18-12-109 C.R.S. These include:

• law enforcement officers and members of the military acting within the scope of their duties, and
• authorized people involved in mining, medicine and certain other fields of employment.

An experienced Colorado criminal lawyer can help

18-12-109 C.R.S. is one of the most complex and nuanced statutes in the Colorado criminal code. Violation of it is always a felony.

To help you better understand Colorado’s law on explosive and incendiary devices and WMDs, our Denver Colorado criminal defense lawyers explain the following:

• 1. What weapons are covered by 18-12-109 C.R.S.?
• 2. What acts are prohibited under 18-12-109 C.R.S.?
• 3. Who may legally possess devices otherwise prohibited by 18-12-109 C.R.S.?
• 4. Penalties under 18-12-109 C.R.S.
• 5. Defenses to Colorado 18-12-109 C.R.S.

Also, see our article about Colorado fireworks laws.

1. What weapons are covered by 18-12-109 C.R.S.?

Explosive and incendiary devices

Explosive and incendiary devices include (but are not limited to):

• Dynamite,
• Military C-4 (plastic explosives),
• Blasting agents (such as nitro-carbon-nitrate, and ammonium nitrate and fuel oil mixtures),
• Cast primers and boosters,
• R.D.X.,
• P.E.T.N.,
• Electric and non-electric 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;
• Explosive bombs, grenades, missiles, or similar devices;
• Incendiary bombs or grenades (such as Molotov cocktails,¹
• firebombs or any similar device, other than a kerosene lamp, 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).

“Explosive or incendiary device” does not include any

• rifle,
• pistol,
• shotgun ammunition, or
• the components for handloading rifle, pistol, or shotgun ammunition.

Explosive and incendiary parts

Explosive and incendiary parts are any substances or materials or combinations thereof which have been prepared or altered for use in the creation of an explosive or incendiary device. They include (but are not be limited to) any:

• Timing device, clock, or watch which has been altered in such a manner as to be used as the arming device in an explosive;
• Pipe, end caps, or metal tubing which has been prepared for a pipe bomb;
• 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.

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

Chemical, biological, or radiological weapons or materials

Chemical, biological, and radiological weapons are not specifically defined by Colorado 18-12-109 C.R.S.

However, according to the Organisation for the Prohibition of Chemical Weapons, the general and traditional definition of a chemical weapon is a toxic chemical contained in a delivery system, such as a bomb or shell.

The United Nations Office at Geneva (UNOG) defines a biological weapon as a complex system that disseminates disease-causing organisms or toxins to harm or kill humans, animals or plants. Almost any disease-causing organism or toxin can be used in biological weapons.

Like chemical weapons, a biological weapon generally consists of two parts –

1. a weaponized agent and
2. a delivery mechanism.

Finally, a radiological weapon is one that disperses radioactive (nuclear) material with conventional explosives or by fire or by dilution in water or air. Radiological weapons include so-called

•  “dirty bombs” or
• radiological dispersal devices (RDD).

Hoax devices and weapons

A device or weapon need not be real for you to commit a crime in Colorado. Under 18-12-109 C.R.S., you commit a felony when you do any of the prohibited acts listed above with

• a hoax explosive or incendiary device or
• a hoax chemical, biological, or radiological weapon.

2. What acts are prohibited under 18-12-109 C.R.S.?

In Colorado it is a crime to knowingly do any of the following acts with an explosive or incendiary device, a chemical, biological, or radiological weapon, or a hoax device or weapon, unless you are lawfully entitled to do so (as discussed below):

• possess it,
• control it,
• manufacture it,
• give to someone,
• mail it,
• send it to someone,
• cause it to be sent,
• dispense it,
• distribute it,
• sell it, or
• remove it, carry it away from, or cause it to be removed or carried away from the premises where it is kept by the lawful user, vendor, transporter, or manufacturer without such person’s consent or direction.

3. Who may legally possess devices otherwise prohibited by 18-12-109 C.R.S.?

Certain people are exempt from the prohibitions against possessing explosive or incendiary devices. They are:

• A peace officer while acting in his official capacity transporting or otherwise handling explosives or incendiary devices;
• A member of the armed forces of the United States or Colorado National Guard while acting in his official capacity;
• 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;
• 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;
• A person who is exempt from the necessity of possessing a permit under the provisions of section 9-7-106(5), C.R.S. [Explosives permits], or an employee of such exempt person acting within the scope of his employment; and
• 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. Penalties under 18-12-109 C.R.S.

Use of a prohibited device or weapon in the commission of or attempt to commit a felony

18-12-109 C.R.S. (4) provides:

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.

Punishment for a Colorado class 2 felony can include:

• 8-24 years in prison (with 5 years mandatory parole), and
• A fine of $5,000-$1,000,000.

And if the other felony or attempted felony is a Colorado “crime of violence” (such as murder, kidnapping or aggravated robbery), the court must sentence you to

• at least 16 years in prison and
• possibly as much as 48 years.

Removal of an explosive or incendiary device from someone else’s premises

18-12-109 C.R.S. (5) provides:

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.

Punishment under this section can include:

• A mandatory prison sentence of 2-6 years (with 3 years mandatory parole), and
• A possible fine of $2,000-$500,000.

Removal of a chemical, biological, or radiological weapon from someone else’s premises

18-12-109 C.R.S. (5.5) provides:

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.

Consequences of removing a chemical, biological, or radiological weapon include:

• A mandatory sentence of 4-12 years in prison (with 5 years mandatory parole), and
• A potential fine of $3,000-$750,000.

Possession of explosive or incendiary parts

18-12-109 C.R.S. (6) provides:

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

Penalties for possession of explosive or incendiary parts can include:

• 2-6 years in prison (with 3 years mandatory parole), and/or
• A fine of $2,000-$500,000.

Possession of a chemical, biological, or radiological weapon

18-12-109 C.R.S. (6.5) provides:

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

Punishment for a Colorado class 3 felony can include:

• 4-12 years in prison (with 5-years mandatory parole), and/or
• A fine of $3,000-$750,000.

Distributing or selling explosive or incendiary devices to an unauthorized person

18-12-109 C.R.S. (8) provides:

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.

Consequences of illegal selling an explosive or incendiary device can include:

• 2-6 years in prison (with 3 years mandatory parole), and/or
• A fine of $2,000-$500,000.

Hoax devices or WMDs

18-12-109 C.R.S. (7) provides:

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.

Consequences of doing any of these acts with a hoax device or weapon can include:

• 1-3 years in prison (with 2 years mandatory parole), and/or
• A fine of $1,000-$100,000.

5. Defenses to Colorado 18-12-109 C.R.S.

The best legal defense to Colorado charges of possessing a bomb or other prohibited weapon depends on the precise charges and circumstances.

However, some of the more common defenses to such charges include (but are by no means limited to):

• You didn’t have control over the device, weapon or material;
• You held a valid permit to possess the device or material;
• You didn’t know you possessed the device or material;
• You were acting under duress; or
• The police discovered the device, weapon or material during an illegal search and seizure that violated your Fourth Amendment rights.

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Denver, CO 80211
(303) 222-0330

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