While making an honest mistake on a hike or a fishing trip is understandable, the Commonwealth of Virginia works hard to preserve the land and has established strict trespassing laws to protect individual property rights. You may not consider trespassing as a serious crime, but since land and property are considered among a person’s most important assets, if you are charged with the unauthorized entry of someone else’s property, you run the risk of facing a misdemeanor conviction, possible jail time, and significant fines.
As experienced Roanoke property crimes attorneys, the legal team at Copenhaver, Ellett & Derrico know all too well that trespassing charges usually arise from misunderstandings and people inadvertently entering schoolyards, parks, and other types of private property after hours and without ill intention. Let us tell your side of the story as we strive to protect your rights and find the best possible resolution.
Trespassing Laws & Penalties
Trespassing in Virginia (§ 18.2-119) is defined as going onto or remaining on lands, buildings, premises, or any portion thereof, after having been forbidden to do so, either orally or in writing, by the owner, lessee, custodian, or the agent of any such person, or other person lawfully in charge.
There are several ways that a person can be charged with trespassing:
- Knowingly entering land without permission
- Remaining on another’s property after being told to leave
- Going onto property without permission where no trespassing signs are posted
- Coming onto property in violation of a protective order
Under this statute, trespassing in Virginia is a Class 1 misdemeanor, punishable by up to 12 months in jail and a fine up to $2,500. There are also aggravating factors that can heighten the offense. For instance, if an offender deliberately chose the property in question based on race, religion, or ethnicity, the crime can be pursued as a Class 6 felony, with a 30-day mandatory sentence, a minimum of 6 months in jail, and possibly up to 5 years in prison.
Other Trespassing Offenses:
- Unlawful Entry – This involves entering another person’s property with the intention of damaging or otherwise interfering with the owner’s rights. This is also treated as a Class 1 misdemeanor, punishable by up to 12 months in jail and a $2,500 fine. Furthermore, if the property was targeted due to occupant or owner’s race, religion, or ethnicity the offender can face a felony charge, mandatory 30 days in jail, up to five years in prison, and a $2,500 fine.
- Trespassing upon a Church or School – If an individual unlawfully enters a school, cemetery or church property without permission, they can be charged with a Class 3 misdemeanor, carrying a $500 fine. This can be escalated to a Class 1 misdemeanor and the penalties previously discussed if the offender enters after they were told to leave by an authorized person or any written notice. Additionally, if someone trespasses with the intent to kidnap a student, the offense can be escalated to a Class 6 felony.
- Trespassing Laws Relating to Hunting & Fishing – People in Virginia take hunting and fishing very seriously and if you are found to be hunting, fishing, and/or trapping in a state forest without a permit or on private land without permission from the landowner, this can be a form of trespassing, punished as a class 3 misdemeanor and a $500 fine.
How is Trespassing Different than Burglary?
Even though both burglary and trespassing offenses deal with entering property without authorization, burglary is a much more grievous crime, where the violent act of breaking or creating an entrance is a contributing factor and includes the offender’s intent to commit another crime. Due to its distinct and more violent nature, Virginia law does not permit trespassing to be considered as a lesser offense of burglary. Essentially, if you are initially charged with burglary, it cannot be reduced to trespassing.
What is Proper Notice?
A key element in most trespassing cases is how were you notified that your presence was prohibited. Simply put, just being on the property is not sufficient to reach a conviction. The prosecution must prove that you knowingly entered upon the property after being provided oral or written instruction by someone with authority that the area was off-limits. In addition to verbally being told to leave a property by an authorized person, notice can be given generally by posted signs prohibiting trespassers if the signs are reasonably visible or directly in the form of a letter sent via mail or courier, and by an official court order resulting from a protective order.
Possible Defenses to Trespassing
A trespassing conviction requires that the accused willfully entered upon and/or remained on a premise without permission, but if they were not actually in the forbidden area, were not appropriately notified that they were barred from entry, were lost, or reasonably thought they were on property they had the authorization to use, they cannot be penalized for trespassing. Depending on the unique facts of your trespassing case, a highly-skilled Roanoke criminal defense lawyer will be able to build a custom-made defense strategy that addresses all the accusations leveled against you. For example:
- Was the posted sign reasonably visible? If you enter an area that is prohibited but the ‘No Trespassing’ sign is not properly displayed, it can be argued that you lacked the knowledge that the property was off-limits; therefore, you didn’t have the intent to trespass.
- Did I have a good faith belief or bona fide claim of right? This basically means that someone believes (even if they are wrong) that they have a genuine right to be on the property. This does not automatically require that the person is an owner, but could be considered if they truly thought they had the required authorization.
Why You Need a Roanoke Property Crimes Lawyer
Most trespassing cases in Virginia are treated as Class 1 misdemeanors, making the penalties significant and a serious hindrance to your life and future for what is likely a minor oversight. Therefore, it is critical that you discuss the situation with a Roanoke attorney with considerable experience handling property crimes. With a veteran Roanoke property crimes lawyer at Copenhaver, Ellett & Derrico by your side, you stand a greater chance of obtaining a favorable outcome.