Burglary is a common crime of property theft in the Commonwealth of Virginia and its penalties can have lasting consequences on your life. You require a legal representative to fight on your behalf against such charges and avoid the hefty fines and undesirable prison terms. Virginia Criminal Attorney is available and willing to help you fight the charges. Our criminal defense attorneys are well-versed in Virginia burglary laws and serve clients throughout Northern Virginia, including the city of Fairfax.

What is the Legal definition of Burglary in Virginia?

Virginia Annotated Code 18.2-89 defines anybody who breaks into another person's dwelling during night hours and with the motive of committing a felonious act or any larceny as having committed the offense of burglary.

Additionally, Virginia code 18.2-90 considers it burglary if a person enters a dwelling (including a house or anything used for personal residence such as a trailer) at night without breaking or, if during daytime, breaks, enters, and conceals himself or herself with the intention of committing offenses such as rape, murder, arson, or robbery.

Virginia Code 18.2-91 further describes burglary as engaging in the activities mentioned in Virginia Code 18.2-90 above with a view of committing larceny, battery, assault and/or any other felony crimes apart from arson, murder, and rape. In general, Virginia recognizes burglary as the act of breaking and forcefully entering into a residence during the night with an intention to commit robbery or any other kind of theft. This offense is punishable as a felony. An additional sentence may apply if the perpetrator, during the time of the crime, used a weapon and caused death or severe bodily injuries to the homeowner or residents.

Categories of Burglary in Virginia

Based on the above legal definitions, Virginia categorizes burglary into two primary forms: common law burglary and statutory burglary. Common law burglary involves illegal entry into another person's dwelling or house at night, usually thirty (30) minutes after sunset or thirty (30) minutes to sunrise, with the intention of committing a felony or stealing something.

Statutory burglary is further classified into three types depending on the intention behind the act as described below. Each of the classes has distinct elements of crimes which the Commonwealth prosecution must confirm before charging you. These three types include:

  • Statutory burglary with intent to commit robbery, murder, arson, or rape. The elements of the crime under this form of statutory burglary include the fact that you committed a burglarious act during night hours without breaking into someone’s dwelling, or during the day, you broke (and entered) into a residence with the aim of committing murder, rape, arson or robbery.
  • Statutory burglary with intent to commit assault and battery, larceny, or any other felony. This is a burglary committed at night without breaking into the dwelling, or if it is done during the day, the act involved breaking (and entering) into the house with the intention of assaulting, raping, battering or committing any other felony.
  • Statutory burglary with a view of committing a less violent misdemeanor. For you to be charged with this type of burglary, the prosecutor must confirm that your reason for committing the offense was to engage in a misdemeanor offense (such as simple assault) so long as you were not armed

General Elements of the Crime for Burglary Charges

There are three essential elements of the crime that the prosecution must prove before charging you with burglary in the Commonwealth of Virginia. They include:

  • Forcefully breaking (and entering) into a person's dwelling;
  • If the incident occurred at night it is a common law burglary. Any other type of burglary is considered a statutory burglary;
  • The intention to commit any theft, robbery, rape, arson, murder, or any other offense.

Forcefully breaking means that you let yourself into someone's dwelling without the person's consent by use of force, violence, or threat. The term 'force' implies the use of actual physical might, including pushing the door slightly, or even using a master key, fraud, trick, or even threats to make your way into the structure. On the other hand, ‘breaking' involves gaining entry into another person's dwelling – regardless of how you got inside the enclosure. A ‘dwelling' according to this statute is a structure where a person lives regardless of whether it had occupants during the incident or not. The building must also belong to another person apart from you (the accused).

The prosecutor must also prove that you had the intention of committing a crime once inside the building. The time at which the incident occurred is also an essential element as it enables the prosecutor to determine the specific form of the burglary to charge you. For instance, if you committed the offense during the day by breaking and entering, you face statutory burglary charges. If you committed the act at night without breaking, you would be charged with common law burglary.

What Type of an Offense is Burglary?

In Virginia, common law burglary is a class six (6) felony; but if committed in possession of a deadly weapon, the crime is a class two (2) felony. A statutory burglary, depending on the circumstances and the intent behind the offense, is treated as either a class two (2) or a class three (3) felony. Moreover, a statutory burglary committed in the presence of a gun is treated as a class two (2) felony.

What Are the Penalties for Burglary Convictions in Virginia?

Penalties for burglary convictions in Virginia differ depending on whether you are charged with common law or statutory burglary. Within statutory burglary, the charges further vary based on the accused’s intentions. For instance, if you are charged with common law burglary you may be found guilty of a class three (3) felony which results in a penalty of five (5) to twenty (20) years imprisonment and a fine of one hundred thousand ($100,000) dollars in addition to or as an alternative to the jail term.

If you are charged with statutory burglary with an intention to commit robbery, arson, or rape, you can face punishments of five to twenty years in prison, with a fine of up to one hundred thousand ($100,000) dollars. Similarly, if you are convicted of statutory burglary with an intent to commit assault, battery, larceny, or any other felony besides murder, you will face a prison term of one (1) to twenty (20) years or, alternatively, twelve (12) months and a fine of two thousand five hundred ($2,500) dollars

If you are accused of using a firearm when committing the burglary, your conviction may attract an elevated punishment under Virginia Code, Sections 18.2-90 and 18.2-91. Consequently, the offense is a class two (2) felony whose penalties range from twenty (20) years to life imprisonment and an additional fine of one hundred thousand ($100,000) dollars.

What is the Difference between Burglary and Robbery?

Burglary and robbery are often confused because they both involve theft of items. However, there exist several differences between the two offenses. For instance, while burglary includes breaking and entering into the victim’s dwelling, robbery does not. Similarly, robbery involves the use of fear or force on the victim while burglary does not; a burglary perpetrator may not even come close to the victim and not use any physical force on the victim.

Another difference between the two offenses lies in the element of intent. For you to be convicted of robbery, you must have had an intention to deprive the owner of his or her property permanently and then walked away with the property. However, for burglary, you may not achieve your intent to deprive the owner of the property (as in larceny) so long as the prosecution can ascertain that your initial motive of entering the structure was to commit a felony. 

Also, the penalties carried by both offenses upon conviction are dissimilar depending on the various conditions and circumstances of the crime; robbery is always a felony, punishable by at least five (5) years in prison and a fine of $2,500 dollars. In addition, burglary in Virginia is usually committed at night while robbery can be committed at any time. Finally, burglary only occurs inside a dwelling even if the place is unoccupied, but robbery occurs anywhere – even on the streets.

Charges Related to Burglary in Virginia

There are some charges in Virginia that can be charged alongside or instead of burglary charges. They are closely related to the crime of burglary because they involve breaking into a place or possessing a tool used to commit a burglary. Please note that there are other offenses related to burglary such as larceny, shoplifting, robbery, and carjacking because they all fall under property theft crimes.

Charges that related to burglary include:

Virginia Code Section 18.2-92: Breaking and/or entering with a motive to commit a misdemeanor

Under Virginia Code 18.2-92, breaking and entering with intent to commit a misdemeanor prohibits any person from breaking into another person's dwelling and entering with a motive to carry out a misdemeanor, excluding battery and assault offenses. The prosecutor could charge this offense as a Class six (6) felony as long as you were not armed with a dangerous firearm. The penalties for this offense include a prison sentence of one to 20 years or, with the judge's discretion, you can receive a lesser punishment of (12 months) behind bars, a maximum $2,500 dollars as fines, or both the fine and imprisonment. If during the crime, you used a dangerous weapon, this offense becomes a Class two (2) felony and the sentence is twenty (20) years to life.

Virginia Code Section 18.2-93: Entering into a banking building to commit larceny

Virginia Code 18.2-93 considers it a crime if you enter a banking building, either during daytime or night-time, while armed with a weapon and with an intent to commit larceny of bonds, notes, money, or any other offense related to burglary. ‘Entering' implies any intrusion into any section of a banking building. Structures considered banking buildings include banks, loans/saving institutions, and credit institutions. Deadly weapons, on the other hand, refer to any instrument that has the capability of causing great bodily injuries, or even death, such as guns and knives. If proven by the Commonwealth prosecution that you engaged in such an act, you face punishments for a class two (2) felony, whose penalties include a minimum imprisonment term of twenty (20) years and maximum imprisonment of life. Fines of up to one hundred thousand ($100,000) dollars may also apply.

Virginia Code 18.2-94: Possession of burglary related tools

Under Virginia Code 18.2-94, you can face possession of burglary tools charges (which is a class five felony) if you are in possession of any burglarious tool, instrument, or outfit, with an intention to commit robbery, burglary, or any form of larceny. Being in possession of such items without a license serves as an indicator that you had an intention to commit burglary and other related offenses. Some examples of tools regarded as burglarious in Virginia include hammers, crowbars, explosives, and any device associated with burning. The penalties for this offense include ten (10) years imprisonment and a fine of up to two thousand five hundred ($2,500) dollars. However, before being convicted of the offense, the Commonwealth prosecution must prove beyond any reasonable doubt that you intended to commit the offense.

Legal Defenses for Burglary charges

Being accused and convicted of burglary leads to harsh penalties that can have lasting impacts on your life. Sometimes, you may find it difficult to understand some legal provision which would have helped you save yourself from the penalties. You need a reliable attorney to offer you protection against the charges by taking any of the following legal defense strategies to have the charges against you dismissed or reduced. These strategies include:

Lack of intent

To be convicted of burglary, the prosecutor must provide proof of the existence of an intention to commit a crime such as rape, theft, assault, or any other form of crime upon entry into another person’s dwelling. Lack of such intent can act as a defense strategy to have the charges dismissed. This defense strategy may apply if, for example, you accidentally entered someone’s residence as an act of self-defense to escape a mob or group of robbers. Other aspects such as entrapment can also help in proving that you did not intend to commit the crime.

Mistaken identity

The attorney can also argue that you were mistakenly accused of burglary, especially if the alleged victim claims that the perpetrator was wearing an unrecognizable outfit or mask. In such cases, the alleged victim or witness would try to recognize the person by physical appearances such as height, the way they talk, or walking style. Such elements may produce misinformation where a wrong person may be charged with a crime that they never committed. Your attorney can analyze the situation surrounding the case and establish if you are mistakenly or wrongfully accused.

Permission of entrance/consent

The attorney may also argue that you were permitted to enter into the dwelling by the owner, who later accused you of burglary on the grounds of issues like revenge or malice. This claim can be challenging to prove, especially if you have no relationship history with the complainant. However, you can produce information in the form of text messages, email conversations, or any other form of conversation that capture the complainant's consent to have you in their place.

Actual innocence

The prosecution bears the task of convincing the jury that you actually committed the crime. Your attorney can challenge these pieces of evidence by planting reasonable doubt in the jurors’ minds. The attorney can also refute the evidence by claiming that it is insufficient. To do this, he/she will counter each piece of evidence and show that they don’t form a strong basis for burglary charges.

Sometimes, the prosecutor might satisfactorily prove the elements of burglary apart from a given element. In this case, the charges may be dropped to other property theft charges such as larceny. Such a scenario might also occur if your attorney opts for a plea bargain to convince the prosecutor to settle for lesser charges. The latter usually happens when the prosecutor has strong evidence that you committed the crime.

Bear in mind that defense strategies depend on the specific circumstances of your case. Thus, it is crucial to provide your attorney with any details for proper evaluation to decide on the best defense strategy.

Find a Criminal Lawyer Near Me

Going through a burglary case can be stressful, especially when it comes to looking for an experienced criminal defense lawyer to advise you and offer legal help. However, your legal representative is a phone call away. At Virginia Criminal Attorney, we help people charged with burglary by representing them in court. Our attorneys are well-versed with Virginia Criminal Law and serve clients in the Fairfax and Northern Virginia regions. Call our Fairfax Criminal Lawyer today at 703-718-5533 to talk to a legal representative who can help you through your case.