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Fairfax Criminal Defense Attorney Explains: Burglary in Virginia

Burglary (Breaking & Entering) is a common law and statutory crime in Virginia.  The punishments vary greatly from a Class 1 Misdemeanor Unlawful Entry offense, to a felony punishable by up to 5 years; up to 20 years; up to Life. 

Required of all burglaries and unlawful entries, the entry is against the will of the owner or lawful occupant.

Virginia's common law definition of Burglary, and punishment:  

  • If any person break and enter the dwelling house of another
  • in the nighttime with intent to commit a felony or any larceny therein,

he shall be guilty of burglary, punishable as a Class 3 felony [5 to 20 years in prison]; provided, however, that if such person was armed with a deadly weapon at the time of such entry, he shall be guilty of a Class 2 felony [20 years to Life].

Burglary is a serious offense.  Contact a seasoned criminal trial attorney, George Freeman, today to discuss your case.  Mr. Freeman is a former senior prosecutor and is now a Fairfax Criminal Defense Lawyer.  Schedule a free consultation today.

What is breaking?  It does not require that anything be broken.  Further opening an already partially opened door, or lifting open an unlocked window is a "breaking."  Constructive breaking requires the use of threats, fraud, trickery, conspiracy, or other evil conduct designed to prompt the victim to let the defendant inside.  

What is entering?  Any part of you, or extension of you, that crosses the threshold into the dwelling or building.

What is a deadly weapon?   Intuitively, we know that a firearm is a deadly weapon.  Under the law it is known as a per se deadly weapon.  But other objects may be deadly weapons depending on the manner and use of the object.  If an item, not a part of the human body, is likely to cause death or serious bodily injury based on the manner and circumstances of its use in a given case, it can be a deadly weapon.  This means a person who commits a burglary with a screwdriver could be committing the felony with a deadly weapon.  For example, if one uses the screwdriver to harm or threaten the home occupant upon entry, the screwdriver has likely become a deadly weapon.  The issue becomes, however, whether the Commonwealth can prove it was a "deadly weapon" at the time of the entry, not whether it later became such.

How is Intent proven?  Burglary is a specific intent crime.  That is to say, a person who breaks and enters must do so with a specific intent to commit another crime - like any felony, or larceny, or assault and battery.  It does not matter whether the person succeeds at accomplishing their desired intent.  And, the intent must have existed at the time of the breaking and entering - it cannot be an intent that is formed later.  Absent a confession, proving intent can be difficult.  But circumstantial evidence is competent evidence.  Additionally, most burglaries are committed with the intent to commit larceny - to steal.  Once the person has actually accomplished their intent, it can be easy for the Commonwealth to show that they intended to steal...because they in fact stole.  Nonetheless, intent is a huge issue in a burglary case and one that can be very difficult for the Commonwealth to prove beyond a reasonable doubt.

To read more about property crimes, click here.  There are several other forms of Burglary.  Typically they involve different specific intents, and different theories of entry either in the day or night and involve different structures or places.  If you are charged with Burglary, contact Fairfax Criminal Defense Attorney George Freeman.  He will gladly meet with you to discuss your case.  

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