While robbery and burglary have similarities, they are distinct crimes in the eyes of the law. Burglary is a more serious crime and could attract grave and life-changing consequences upon conviction, including up to life in prison. The seriousness of the burglary charge conviction depends on the facts and circumstances of your unique case.

If you are arrested or have pending burglary charges, the services of an attorney will be vital to avoiding the possible penalties or securing a favorable outcome. Our credible defense attorneys at Virginia Criminal Attorney are here to help if you or a loved one is under arrest or charged with a burglary offense in Fairfax.

Burglary at a Glance

According to Va. Code 18.2-89, you commit burglary when you enter someone's dwelling at night with the criminal intent of committing larceny or felony once inside. This primary common burglary law also contains several statutory crimes, which are classified into various categories depending on the following:

  • Whether unlawful entry occurred (breaking and entering).
  • The time the offense occurred.
  • The kind of establishment or building involved.
  • Your intentions once inside the building or establishment.

Generally, the prosecutor will file burglary as a felony, meaning your punishment upon conviction is grave. However, if the prosecutor can prove the residents or homeowners sustained a serious injury or you had a dangerous weapon when committing the offense, your sentence will be harsher.

Key Elements the Prosecution Team Must Prove for a Burglary Charge Conviction

If your burglary case is not resolved at the pretrial stage of the prosecution process, your attorney will have to challenge it at the trial to secure a dismissal of the charge or a lighter offense. However, to secure a burglary charge conviction against you under Va. Code 18.2-89, the prosecution team will bear the legal burden to prove the following facts beyond a reasonable doubt:

  • You accessed someone's house or dwelling at night by breaking and entering.
  • You had the criminal intent to commit any felony or larceny once inside.

Below is a brief explanation of key terms in the above elements of the crime in the legal definition of burglary offense:

Breaking

To break into someone's dwelling or house means you used some degree of force illegally or without permission to access the house. However, the prosecutor does not have to prove the force caused damage to the person's house. The court will consider using a key to unlock the door or pushing the door open without permission as breaking.

It is important to note that the “breaking” could be constructive or actual. Actual breaking means you used force to access the dwelling place. Conversely, constructive breaking means you used fraud, conspiracy, or threats to access someone's house.

Entering

Entering means you illegally intruded on another person's space with the criminal intent to commit an offense once inside. Even if you entered the dwelling with permission or slightly, you could be guilty of a burglary offense if you had the criminal intent to commit a larceny or felony once inside. That is true, regardless of whether you completed the offense or not.

To prove your intent when entering someone's dwelling place, the prosecutor will primarily rely on circumstantial evidence, like carrying a bag, and any evidence that can prove your actions at the time of the offense.

Night

The prosecutor must also prove that the entering occurred at night to secure a burglary charge conviction against you under Va. Code 18.2-89. Under this statute, “night” could be anytime from sunset or sunrise.

However, if the offense occurred during the day, the prosecutor could charge and secure a conviction against you for a statutory burglary offense under Va. Code 18.2-92, Va. Code 18.2-91, or Va. Code 18.2-90.

Dwelling Place

According to Va. Code 18.2-89, you commit a burglary offense when you commit burglary against another person's dwelling. According to this statute, a dwelling is any occupied structure, even if the occupant or owner was not present when you committed the burglary offense.

Without adequate facts and evidence to prove these key elements of a burglary offense beyond a reasonable doubt, the prosecutor cannot secure a conviction against you. Beyond a reasonable doubt, there is no reason any standard sober person would doubt you committed the burglary offense.

Potential Sentence for a Burglary Offense

The sentence for burglary will depend on whether the prosecutor will file your burglary case under the common law or the statutory burglary laws. However, under the statutory burglary laws, the charges could vary depending on your criminal intent before you illegally enter another person's dwelling place or structure.

If the prosecutor files your burglary charge under the common law (Va. Code 18.2-89), you should expect the following Class 3 felony penalties:

  • Up to twenty (20) years behind bars.
  • A fine not exceeding $100,000.

On the other hand, statutory burglary crimes were created to make burglary illegal in situations or places that do not meet the standard legal definition of burglary under Va. Code 18.2-89. The penalties for statutory burglary will vary depending on your intent at the time of the offense. Described below are potential penalties for various types of statutory burglary:

  1. Burglary With the Criminal intent to Commit Robbery, Rape, Arson or Murder

According to Va. Code 18.2-90, it is a crime to enter another person's dwelling or house at night or break and enter at any time or enter without breaking and hide yourself once inside with the intent to commit any of the following offenses:

  • Robbery.
  • Rape.
  • Arson.
  • Murder.

The prosecutor will file your burglary charge under Va. Code 18.2-90 as a Class 3 felony, carrying the following penalties upon conviction:

  • Up to twenty (20) years of jail time.
  • A fine not exceeding $100,000.

However, your burglary offense will become a Class 2 felony if the prosecutor can prove you were armed with a dangerous weapon when entering another person's dwelling, house, boat, or structure. A class 2 burglary charge conviction could attract up to life in prison and a fine of up to $100,000.

  1. Burglary With the Intent to Commit an Assault, Battery, Larceny, or Any Felony

Va. Code 18.2-91 makes it a crime to commit any felony not mentioned or described under Va. Code 18.2-90, including assault, battery, larceny, or any other felony offense, regardless of your offense level. In most cases, the prosecutor will file this offense as a felony, carrying up to twenty (20) years of jail time.

However, at the jury or judge's discretion, you could receive misdemeanor penalties, including a fine not exceeding $2,500 and up to twelve (12) months of jail time. However, if the prosecution team can prove you gained access to someone's dwelling while armed with a dangerous weapon, your burglary case will become a Class 2 felony. In that case, your penalties upon conviction could include:

  • Up to twenty (20) years to life in jail.
  • A fine amounting to up to $100,000.

Also, if you entered a bank armed with a dangerous weapon with the criminal intent to commit theft or larceny of notes, bonds, or money, your burglary case will become a Class 2 felony. Your penalties upon conviction in this case are as outlined above.

  1. Burglary With the Criminal Intent to Commit Other Misdemeanor Offenses

When you break and enter a dwelling at any time (either night or day) with the criminal intent to commit a misdemeanor offense other than battery, assault, or trespass, the prosecutor will file a Class 6 felony burglary charge against you. While it is a low-level felony offense, a conviction will attract up to five (5) years of jail time.

However, at the judge or jury's discretion, you could receive a jail term of up to twelve (12) months and up to a $2,500 maximum fine. It is worth noting that your offense will become elevated to a Class 2 felony if a lethal weapon is used in the commission of the offense.

If you have pending burglary or statutory burglary charges, retaining the services of a skilled and seasoned attorney can mean the difference between a conviction and securing a dismissal of the charge or a lighter sentence.

How a Plea Bargain Works in a Burglary Case

A plea agreement between you and the prosecutor could resolve your burglary case. If you have burglary charges, a plea agreement is worth considering. To qualify for a plea bargain, you must enter a “no contest” or “guilty” plea to the burglary charges you are up against in exchange for a reduced charge, like trespass or robbery.

Considering the potential legal consequences of a burglary charge conviction, most attorneys strive to secure a favorable plea bargain option, especially when the prosecutor has a strong case against you. Other factors you or your attorney must consider before accepting a plea offer include:

  • Your criminal record.
  • The chances of winning the case at trial.

Aside from helping you avoid the mandatory and lengthy jail time of a burglary charge conviction, the prosecutor could be willing to accept a plea bargain because it will help him/her clear his/her caseloads. A plea bargain is undoubtedly worth considering when charged with burglary, but you need to weigh the possible drawbacks of accepting one. For example:

  • When you are factually innocent, it could feel like you are receiving punishment for a crime you did not commit.
  • You will waive your constitutional right to a trial, which allows you to challenge the allegations you are up against.
  • You will receive punishment for the lighter offense the prosecutor will offer you during the plea bargain.
  • You will have a criminal record, which can affect your ability to live your life optimally after serving your sentence.

While a plea bargain option is available in most burglary cases, it does not mean the prosecutor will accept your request.

You will rely on your attorney during the plea bargaining process to stand a chance of securing a favorable outcome. If you are not an excellent candidate for a plea bargain, all hope is not lost. A skilled attorney can craft the best defenses to help you secure a dismissal of the case at trial or a lighter sentence.

Legal Defenses to a Burglary Charge

Even when your case reaches the trial phase of the court process, it does not mean a conviction is inevitable. Whether or not the court will convict you of a burglary charge will depend on the evidence the prosecutor has against you and your attorney's defense arguments.

A skilled and seasoned defense attorney can craft legal defenses that weaken or raise doubt on the prosecutor's case against you to secure dismissal of the case or a lighter charge. Below are legal defenses your attorney could assert to weaken the prosecutor's case against you to secure the best possible verdict:

You Lacked the Criminal Intent to Commit a Crime

To secure a burglary charge conviction against you, the prosecution team must prove you had the criminal intent to commit an offense after entry into someone's dwelling or home. Lack of this intent could act as a legal defense to challenge burglary allegations you are up against to secure a favorable outcome.

For example, your attorney could argue that your reason for entering the person's dwelling was because a mob was trying to attack you, meaning you only did so to protect yourself (self-defense). If the court finds this defense argument viable, it will dismiss your case or reduce it to a less serious offense.

You are a Victim of Mistaken Identity

Mistaken identity issues are common in burglary cases, mainly if the offense occurred at night or the perpetrator was wearing a mask. If your attorney can argue that you are a victim of mistaken identity because you have the same height as the perpetrator, the prosecutor could dismiss your case.

Any evidence proving where you were at the time of the offense could also work to your advantage to secure a desirable outcome.

You Had Consent to Enter the Dwelling

If you had consent or permission from the legal property owner to enter his/her dwelling, you cannot be guilty of burglary. Email conversations or text messages between you and the property owner are examples of evidence you can use to prove you had the consent to enter his/her dwelling place.

You are Factually Innocent

The prosecution team carries the legal burden of convincing the judge or jury beyond a reasonable doubt that the allegations you are up against are true. However, a skilled and aggressive defense attorney could challenge the prosecutor's case against you and provide evidence that can cast doubt on his/her case against you.

Your defense attorney could also challenge the prosecutor's arguments at trial by arguing that his/her evidence is insufficient to secure a burglary charge conviction against you. If your defense attorney can prove that the prosecutor's evidence against you does not form a proper basis for a burglary charge, the court will likely dismiss or reduce your charges.

You Legally Own the Property or Dwelling

As mentioned in the previous paragraph, the court cannot convict you of a burglary charge if you have the legal right to be on the property. If your defense attorney can provide documents to prove you legally owned the property or dwelling, the court will dismiss your burglary case.

Even if you did not own the property, the court could dismiss or reduce your case if your attorney can prove with proper evidence that you reasonably believed you owned the property you entered.

The Property Was Not a Dwelling

Recall that "dwelling" has a precise legal definition under Va. Code 18.2-89. While it is a tricky legal defense, a seasoned attorney could argue that the property you entered was not a dwelling to secure a dismissal of your burglary charge under Va. Code 18.2-89.

However, if you have statutory burglary charges, this defense could be invalid because these cases could involve the burglary of stores and banks.

You Were Involuntary Intoxicated at the Time of the Offense

If you entered someone's property while intoxicated, the court could dismiss your case if your attorney can prove your reason for entering the dwelling was because you were under the influence. That means your act or conduct was accidental, and you did not intend to gain entry into someone's dwelling.

Depending on the evidence your attorney will provide at trial, the court could accept this legal defense and dismiss or reduce your charges.

The specific legal defenses your attorney will use to challenge your burglary case will depend on the unique circumstances and facts of your unique burglary case. Therefore, when preparing these legal defenses with your attorney, you should provide him/her with as many details as possible.

If eyewitness accounts on the case are vital, your attorney will interview them to know their contact details and whether they are willing to testify in court. Other evidence that could work in your favor includes surveillance videos and DNA to put you far away from the crime scene.

Burglary and Related Offenses

In addition to or instead of the burglary offense, the prosecutor could file various related charges against you, including the following:

Possession of Burglary-related Tools

Having any burglary-related tool, outfit, or instrument in your possession with the criminal intent to commit burglary, robbery, or theft is also a punishable crime under Va. Code 18.2-94. Carrying these tools without a license is enough proof that you had the criminal intent to commit burglary or any other related offense.

For the sake of this statute, here are examples of tools or instruments that could qualify as burglary tools:

  • Crowbars.
  • Explosives.
  • Hammers.
  • Any device that can produce fire.

Since the prosecutor will file this offense as a Class 5 felony, your sentence could include the following:

  • Up to $2,500 maximum fine.
  • A jail term of not more than ten (10) years.

However, to receive the above penalties, the prosecution team must prove all elements of the crime beyond a reasonable doubt, including:

  • You had burglary tools or instruments in your possession.
  • You had the intent to commit burglary, robbery, or any form of theft.

If the prosecutor does not have sufficient evidence to secure a burglary charge conviction against you, he/she could charge you under Va. Code 18.2-94.

Trespass

Trespass is another common offense the prosecutor could charge you instead or alongside the burglary offense. According to Va. Code 18.2-119, trespass is not just about gaining entry into someone's property. Instead, it is about doing so against the owner's explicit warnings or instructions.

For the judge or jury to convict you for a trespass offense under this statute, the prosecution team must prove the following facts beyond a reasonable doubt:

  • You entered someone's property.
  • The property owner requested you not to enter either through writing, verbally, or through any clear and visible sign.
  • The property owner had the legal authority to request you not enter his/her property or premises.
  • You did not have any legal right to enter the property.

The court will only consider a trespass offense to have occurred if the prosecutor has sufficient evidence to prove the above facts. Unlike burglary, the prosecutor will file a trespass offense as a Class 1 misdemeanor, carrying the following possible penalties:

  • Up to $2,500 maximum fine.
  • A jail term of not more than twelve (12) months.
  • A lawful order barring you from entering or accessing the same premises or property again.

Find a Defense Attorney Near Me

A burglary charge is far more than an inconvenience because it could attract lengthy jail time, hefty fines, and a criminal record. When charged with this offense, you need to understand what you are up against and your legal options. We have helped several clients facing similar charges at the Virginia Criminal Attorney and can help you, too.

We invite you to call our reliable defense attorneys at 703-718-5533 for aggressive and result-oriented legal representation wherever you are in Fairfax.