Criminal Statutes to be Read With Common Sense – Ice and Water Insufficient for Criminal Charges in New Mexico

Law enforcement and prosecutors often try to stretch the definitional boundaries of criminal law statutes. On occasion, these attempts defy reason and logic. That was the case addressed recently by the New Mexico Court of Appeals case of State v. Alverson.

In that case, the issue was whether dry ice and water with the potential for a dry ice bomb constitute an explosive device sufficient to support charges for possession of an explosive or incendiary device.

The defendant was stopped for driving on a revoked license. The defendant consented to a search of his vehicle. Upon searching the vehicle, the officer found two bottles of dry ice and two partially full gallons of water. The officer knew these to be capable of generating “explosive gases.” And the defendant admitted that he was going to the desert to detonate them.

The officer arrested and charged him with a fourth degree felony for possession of an explosive or incendiary device. The charge was based on the language of the statute, which requires “knowingly and unlawfully possessing, manufacturing, or transporting an explosive device, incendiary device, or complete combination of parts needed to make such a device.”

At district court, the defendant argued that his possession didn‘t meet the definition of an “explosive device” as a matter of law. As such, the case was dismissed. In support of its dismissal the district indicated that the statute only refers to “chemical reactions caused by burning or by fire,” and not by “expansion of gases under pressure.”

The New Mexico Court of Appeals first looked to the specific language of the Explosives Act. It explained that it first looks to the plain language of the statute in order to interpret it as a whole. When statutory language is “clear and unambiguous,” the Court must abide by that language.

Like the district court, the Court of Appeals stressed that the dry ice components do not fit within the class of devices listed as an “explosive” under the statute, which includes: “dynamite and other high explosives, black powder, pellet powder, initiating explosives, detonators, safety fuses squibs, detonating cord, igniter cord, and igniters,” all of which result from or cause fire.

Neither do they come within the definition of an explosive device which is defined as: “(1) any explosive bomb, grenade, missile [,] or similar device; [or] (2) any device or mechanism used or created to start a fire or explosion with or without a timing mechanism except cigarette lighters and matches [.]”

In sum, the Court reasoned that the legislature didn‘t intend for the term “explosive” to apply to dry ice and water in a closed container. Further, the Court determined that the defendant‘s device wouldn‘t classify as a bomb, since “explosive” modifies “bomb.”

The Court also addressed the State‘s argument that, in the alternative, the dry ice components fall under the definition of “a device or mechanism to start an explosion.” To address this, the Court looked to the definition of an “explosion.”

While an ordinary definition of an “explosion” might include the defendant‘s plans for the dry ice, the Court emphasized that it doesn‘t rely on strict definitions when to do so would be contrary to the legislature‘s intent.

The Court explained that, to rely on the plain meaning of “explosion” would be to call the dry ice materials an “explosive device,” and the Court already explained that the legislature had not intended that. Like the district court, the Court of Appeals reasoned that if the legislature had intended to include dry ice and water, it would have done so. Fortunately, the Court viewed the statutes in a rational light for their plain meaning, which clearly had not anticipated dry ice and water as explosive devices or bombs.


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