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Possession Of A Destructive Device in California


Possession Of A Destructive Device – Penal Code Section 18710

Believe it or not, I’ve handled a lot of cases where somehow a client has gotten themselves charged with a very serious crime of possession of a destructive device – or in other words – some sort of a bomb. As you might guess, the prosecutors and judges take these cases very seriously and will prosecute the person who is charged with this crime and try to send them to prison for as long as possible. Unfortunately, the destructive device that I’m usually seeing is really not a bomb. I’ve seen people charged with big fire crackers because the police were mad at them for some reason and they found some stupid fire cracker in their backyard and they try to charge them with this particular Section. So, the bottom line is having an attorney in these cases is crucial, especially if you really didn’t possess what we would normally think of as a destructive device/bomb and you had something else for some other purpose than to blow things up in an unlawful manner, that obviously this Penal Code Section protects against.

So, the first thing you need to do is if you’re charged with possession of a destructive device pursuant to Section 18710 of the Penal Code, is sit down with an attorney who has been down this road before, who’s handled these types of cases before, knows how to deal with the judges and prosecutors and also knows the rules about how the prosecutors prove this type of a crime. Because a lot of times there are defenses that can be asserted to this crime. For example, the police and the prosecutors are going to have to show that this was an operational device that could actually be used to blow something up. I recently had a case where the police found a giant fire cracker in my client’s backyard and they destroyed the fire cracker back there by blowing it up themselves, but they never checked to confirm that what they were characterizing as a destructive device, actually could blow up, but without them blowing it up. And they didn’t video tape the destruction of the device, so it was impossible for the defense to be able to get their own expert and argue that it wasn’t a destructive device. So, ultimately, that case was dismissed.

Defenses To Possession Of A Destructive Device – Penal Code Section 18710

As indicated above, one defense is that whatever is found is not a destructive device. The prosecutors can’t prove that it was capable of blowing up. So, there’s certain steps and procedures that the police need to take when they deal with these destructive devices, and if they don’t follow the right procedures, then the defense will be able to challenge this type of a charge against the client. It’s certainly understandable that they need to blow something up that could potentially be dangerous, but in doing so, they have to make sure that they’re able to prove that whatever they blew up was actually a destructive device by definition. And they should video tape whatever they’re blowing up. They should take pictures of it and do whatever else is necessary so that a defense expert in the future is able to make a determination as to whether or not this really is a destructive device. In the example above, they basically destroyed the evidence that the defense could use to prove that it wasn’t a destructive device.

So, the key when it comes to defenses to this particular charge are – really, is this a bomb meant to do some sort of damage, other than some sort of a lawful purpose. Because if the person is possessing something and there is a lawful purpose and there is surrounding circumstances and evidence that this person is not going to use this destructive device to do anything unlawful, then that’s where a good defense attorney can either get the case dismissed, get a different charge, a lesser charge – really do some damage control and get this matter resolved in a fair manner.

So, what I have you do is you come into the office, we sit down, we go over everything. Obviously, I need you to be honest with me and don’t leave any details out, don’t put a spin on the case. Tell me exactly what this device was, why you had it and then we can figure out what the best course of action is. And I’m going to let you know how you can assist me in a case. I’m going to let you know what I can do to assist you. I’ll give you a feel for kind of what you’re looking at once we lay everything out on the table, and then you and I are going to work together to execute a plan that gets you out of the judicial system as fast possible and hopefully get your case dismissed if that’s possible. If it’s not possible, then we’re going to get you the lowest possible sentence based on the circumstances of your case.

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Ronald D. Hedding, ESQ.

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