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Fairfax Criminal Defense Attorney Explains: Arson in Virginia

Arson of an Occupied Dwelling is a crime in Virginia punishable by Life in prison or any term not less than 5 years.  Arson of an Unoccupied Dwelling is punishable by up to 10 years in prison but not less than 2 years.  

There is an interesting presumption in Virginia: When a building or structure burns, the fire is presumed to have been caused by accident rather than from the deliberate act of anyone. The defendant is entitled to this presumption unless the Commonwealth proves beyond a reasonable doubt that he intentionally caused the fire.  But make no mistake, the Fire Marshal's Office is capable of determining, in many instances, whether a fire was accidentally started or of an incendiary origin.  The more complicated issue for the government is not proving whether somebody started the fire, but who started the fire.  To read about Investigation Stage Representation before being charged, click here.  George Freeman is a seasoned jury trial lawyer and Fairfax Criminal Defense Attorney.  Contact Mr. Freeman today to discuss your matter if you believe you are the subject of an Arson investigation.

The basic elements of Arson of a Dwelling:

  • a person burned or caused to be burned a dwelling
  • that he acted with malice (wrongful intent)
  • that the dwelling was either
    • occupied; or
    • not occupied

There is a huge difference in punishment between Arson of an Occupied Dwelling and that of an Unoccupied Dwelling.  The actual difference between the two may not be what you think, however.  A dwelling is defined as: any structure in which one or more persons usually dwell or lodge.  What does it mean to be occupied?  It simply means the dwelling has a current, and frequent inhabitant.  A man may go on a trip to Florida.  If a person comes by and burns down his home, that is Arson of an Occupied Dwelling though nobody actually is present in the home.  An abandoned house, however, is not an Occupied Dwelling.  Nor would be a house under construction.  And if a building is not intended as a dwelling, a different Arson offense would be applicable with potentially less severe penalties than for Burning an Occupied Dwelling.  Needless to say, no Arson is lawful.  But the form with the gravest penalty involves burning down another's home.

Other forms of Arson, involving burning structures other than dwellings, define occupied under a traditional view.  If you maliciously burn a building and it happens to be occupied - a person is actually present, that offense is punishable by up to 20 years but not less than 5 years; if no person is in the building, the punishment is up to 10 year but not less than 2 years. 

Arson of Personal Property is also a crime.  Whether the offense is punishable as a felony or misdemeanor depends on the value of the property burned - not the damage done to the property.  

When knowledge, skill and experience matter most, trust in a seasoned trial attorney.  If you are charged with Arson, or believe you are being investigated for such, contact Fairfax Criminal Defense Attorney George Freeman today.  He will gladly meet with you to discuss your case.  

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