Defending a charge of breaking and entering can present some unique legal challenges. Breaking and entering is a crime that entails using force to enter a building without authorization. The building can be any kind of structure, commercial or residential.

An element of the offense In most states is the use of physical force to enter a building, such as breaking a window or forcing a door open. Any amount of movement of a closed entryway is considered sufficient to qualify as breaking and entering. Some states also include in their definitions of the crime the use of deception or fraud to gain unauthorized entry to a building.

How Is Burglary Defined?

Breaking and entering is the most significant element of the crime of burglary. Burglary is breaking and entering with the intent to commit a felony inside the structure. So, burglary is breaking and entering with one added element, the element of intent to commit a felony.

Some states require that the unauthorized entry take place in the nighttime to qualify for a charge of burglary, which would require breaking and entering after daylight hours. And some states have eliminated the requirement that the entry be committed by the use of force. So, any unauthorized entry with the required intent would qualify as burglary in some states.

In California, there is no crime called “breaking and entering”. However, a person who breaks and enters would be charged with other crimes, such as burglary. So if a person forcibly enters a structure with the intent to commit a felony in it, the person would be charged with burglary in California.

In California, entering a structure owned by another without their consent and without any other particular intent constitutes the crime of trespass, which is simply entering the property of another without their permission.

And, in fact, in states that have the crime of breaking and entering, a prosecutor might charge a perpetrator who is caught inside a structure without the authority of the owner before they have committed any felony with breaking and entering. The prosecutor may not have the evidence to prove the specific intent required for conviction of burglary, but does have evidence to prove breaking and entering.

What Are Some Common Examples of Breaking and Entering?

Breaking and entering occurs under many different circumstances. Listed below are some common situations that involve breaking and entering:

  • Entering into someone else’s home through a window that is open only slightly;
  • Breaking a locked door to enter a home when no one is home;
  • Going into a convenience store after it is closed and taking merchandise or supplies;
  • Going back to a former place of employment, breaking in and stealing files or other items that belong to the former employer.

Of course, each of the last three sets of facts would also constitute the crime of burglary, if the perpetrator did the breaking and entering with the intent to commit a felony inside the structure, i.e., felony theft.

Are There Any Defenses to Breaking and Entering?

As in any criminal case, legal defenses are available to the criminal defendant, depending on the facts of the case. Some defenses to a charge of breaking and entering may include:

  • Consent: If the owner of the premises consented to the perpetrator’s presence on the property, it might serve as a defense. However, if the perpetrator exceeds the scope of
    the owner’s permission, the defense may not be available.

    • An example of consent would be when one person gives another person the key to their house so the person can stay in the house and watch it overnight. If the person fails to return the key when asked and returns on another occasion and enters the house, that might qualify as breaking and entering, because the owner did not consent to the second entry;
  • Mistake of Fact: The perpetrator of a breaking and entering must intend to break into the dwelling place of another. It may be a defense if they believed that they were entering their own property. This defense only works if the mistake used by the defendant means that they did not have intent required for breaking and entering to occur.
  • Open Structure: There was no “breaking”, because the property was open. This defense would be available to a person who entered a house whose owner had left the front door unlocked. While this might not be breaking and entering, it might constitute the crime of trespass, which is entering the property of another without permission;
  • Mistaken Identity: The perpetrator who has been charged with breaking and entering can claim that they are not in fact the perpetrator. They are innocent; someone else committed the crime;
  • Alibi: It is always a defense to any crime for the accused perpetrator to argue that they were somewhere else with someone else doing something else and not at the scene of the crime perpetrating a breaking and entering. This is called the “alibi” defense. It is most likely to succeed if the perpetrator can produce a witness to testify to the perpetrator’s presence at an entirely different location at the time the crime was committed.

What Are Some Possible Legal Consequences of Breaking and Entering?

The crimes of breaking and entering, burglary and trespass are creatures of state laws. In most states, breaking and entering is classified as a misdemeanor crime. However, some states consider certain types of burglary as felonies. In both cases, this will result in consequences such as jail time and criminal fines. If significant property damage has been done, the defendant may be required to pay criminal restitution in order to compensate the property owner for the damage done to their property.

Each state has its own definition of the related crimes of breaking and entering, burglary and trespass. Each state will also have its own system for classifying the crime as a felony or misdemeanor and its own laws specifying the applicable range of punishments.

In California first-degree burglary is burglary of a residential dwelling; it is a felony. The crime is punishable by imprisonment in the state prison for 2, 4 or 6 years. In addition, in California, a person convicted of first-degree, residential burglary must serve 85% of their time, and the conviction counts as a strike in California’s three-strikes system. So any subsequent conviction would be punished more harshly than the first.

In California, burglary of a commercial structure can be charged as either a misdemeanor or a felony offense. If the perpetrator is convicted of misdemeanor burglary, the offense is punishable by up to 1 year in a county jail. In most cases, in California the crime of simple trespass is a misdemeanor that is punishable by up to 6 months in a county jail, and/or imposition of a fine of up to $1,000.

In the state of Michigan, breaking and entering is basically the same as burglary in other states. First, the prosecutor must show that the perpetrator broke into a building. If the building is a residential dwelling, the crime becomes home invasion, which is a more serious offense under Michigan law than burglary. The force required for burglary might be something as minimal as opening a door or raising a window.

Also, if any part of your body enters the building, that is enough to establish burglary. So, for example, if the perpetrator has only raised a window and stuck their arm inside when they are caught, they have still “entered” the building as far as the law is concerned. Third, the prosecutor must show that when the perpetrator broke and entered the building, they intended to commit a felony or theft.

Finally, if the perpetrator did not have the specific intent to commit a crime after entering the building, they have not committed breaking and entering, but they can be charged with entering a building without the owner’s permission. This is a misdemeanor in Michigan and it would be punished by a sentence of time in jail of up to 6 months and a fine of $750.

Of course, if a person is convicted of felony breaking and entering, the sentence would be more harsh and would include a term of imprisonment that could be as long as 10 years and a fine that could be as much as $2500.

Should I Contact a Lawyer for Assistance with Breaking and Entering Defenses?

As you can see, the law of breaking and entering, burglary, and trespass can get complicated. Much depends on the state in which you have been charged. But whatever the state, if you have been charged with the crime of breaking and entering, burglary or trespass, you are facing serious consequences and you should consult an experienced criminal defense lawyer.

Your attorney will help you identify whether any defenses apply to your situation. Furthermore, your lawyer knows the criminal legal system and can represent you in court hearings, proceedings and at trial, if that should become necessary.