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Burglary & Breaking and Entering

Burglary is a very complex charge where subtle details can have large implications on the potential penalties that you could be facing. It is also considered a crime of violence in Virginia. If you are convicted you will not only face the possibility of a lengthy prison sentence, but you will also be labeled as a violent offender for the rest of your life.

The terms burglary and breaking and entering are often used interchangeably in everyday speech.  However, breaking and entering is just one component of a burglary offense. Breaking is defined as opening or creating an entrance into a building. Breaking can be an action so slight as to push an open door wide enough to create an entrance. Entering is defined as going into a building, and is not limited to entry by a person; it can be an inanimate object as well. In order to be charged with burglary you must have gained access to a structure by way of force, “breaking,” or without permission of the person who resides in the home. An entry without an accompanying criminal intent is not a burglary under Virginia law, although it may be another, lesser offense.

Levels of Burglary

There are four types of burglary defined by statute in Virginia.

  1. The Virginia common law definition, (§ 18.2 – 89) describes burglary as breaking and entering the home of another person at night while having the intent to commit a felony or any larceny inside.  Common law burglary does not distinguish which felonies are intended during the offense, while statutory burglary does make this specification. This offense is Class 3 Felony unless you are in possession of a deadly weapon at the time of the entry.  This detail would escalate the offense level to a Class 2 Felony.

  2. Breaking and entering with intent to commit murder, rape, robbery or arson is defined in VA Code Section § 18.2 – 90. A violation of this statute can involve breaking in the nighttime or merely entering in the daytime while having the intent to commit murder, rape, robbery or arson. The statute applies to entry into any building or into a vehicle which is used for habitation. Obvious examples of these structures would include single family homes, apartments, or condominiums, whereas less common examples of these would be house boats or recreational vehicles. 

    Without possession of a deadly weapon, this offense is also considered a Class 3 Felony. It is a Class 2 Felony if a deadly weapon is involved.

  3. VA Code Section § 18.2 – 91 pertains to breaking and entering while also having the intent to commit larceny, assault and battery, or other felony that is not murder, rape, robbery or arson. While the statutory description of this offense may appear essentially identical to §18.2-90, the difference is that the intent to commit a less serious offense once inside.

    This offense, if committed without a deadly weapon, is unclassified. As such, the potential penalties are wide ranging and will likely be determined by the discretion of the jury or the court. However, if this offense involves possession of a deadly weapon, then it is a Class 2 Felony.

  4. Another statutory definition (§ 18.2-92) of burglary in Virginia is breaking and entering into a home while someone is inside, either during the day or at night, while also intending to commit a misdemeanor offense other than assault and battery or trespass.  This offense is considered less served than the others listed and is classified as a Class 6 Felony. Like the other burglary statutes, this one also states that if you are in possession of a deadly weapon then the offense is considered a Class 2 Felony.

Possession of Burglary Tools or Possession of Burglarious Tools

Possession of burglarious tools is a separate offense from burglary in Virginia, although it often included as an additional charge with burglary allegations. Essentially, possession of burglarious tools is being in possession of any object that can be used to help steal or break into another person’s property, plus an intent to commit one of the named felonies.

Possession of burglarious tools is defined under VA Code Section § 18.2 – 94 as anyone who has in their possession any tools, implements or outfit, with the intent to commit any act of burglary, robbery, or larceny.

If you are convicted for possession of burglarious tools in Virginia, you will be charged with a Class 5 Felony.

Defense of Burglary

In order to be convicted for burglary in Virginia the government must prove two things:

  1. That you entered a dwelling without consent or through forceful means.

  2. That you entered the structure with the intention, or developed the intention once inside, to commit a felony or misdemeanor.

The details and facts of your specific case will obviously dictate the defense strategy that is right for you.  A qualified criminal attorney will not only employ standard defenses such as alibi and consent, but they will also utilize valuable resources. Proving intent can be a very difficult thing for the prosecution. It is important to look at the context of the entry to see if intent can be assumed.

Regardless of the particular burglary offense with which you have been charged, it is an offense with too many nuances to navigate the charges against you on your own.  We strongly encourage you to hire an attorney who has a history of success in fighting burglary charges in Roanoke.

Facing burglary charges in Virginia?

If you’ve been charged with a crime related to burglary in Virginia, the experienced criminal defense attorneys at Copenhaver, Ellett & Derrico can help evaluate the details of your case and your options. For an appointment at our Roanoke office, call us at .

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