Breaking and entering defenses can often present some unique legal challenges. Breaking and entering is a type of crime that involves the unlawful entry into a building, residence or any other structure. Most jurisdictions require the use of physical force in entering the building, such as breaking a window or pushing open a door. Even the slightest movement of a closed entryway is considered breaking and entering.

Some jurisdictions also include the use of deception or fraud to gain unauthorized access to a building as breaking and entering. As with all crimes committed, breaking and entering is subject to change depending on the facts of the case and if defenses are applied.

How is Burglary Defined?

Breaking and entering is the most significant element of burglary. Burglary is more commonly defined as breaking and entering with the intent to commit a felony. Some jurisdictions require a nighttime element for the charge of burglary, which would require the breaking and entering to occur after daylight hours.

What are Some Common Examples of Breaking and Entering?

Breaking and entering occurs under many different circumstances. Listed below are the most common situations in which breaking and entering occurs:

  • Entering into someone else’s home through a cracked window
  • Breaking a locked door to enter a home when no one is going to be home
  • Going into a convenience store after it’s closed and taking supplies
  • Going back to an old place of employment and taking files that don’t belong to you after closing

Are There Any Breaking and Entering Defenses?

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

  • Consent: If the owner of the premises consented to the defendant’s presence on the property, it might serve as a defense. However, if the defendant exceeds the consent of the home owners permission this defense may not be applicable. A common example of consent would be when one person gives another person the key to watch their house overnight.
  • Mistake: The defendant needs to 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 prevented the intent of the breaking and entering to occur.

While Mistake is a defense to a breaking and entering charge, it takes place under two different subcategories:

Mistake of Law- Mistake of Law takes place when the person that committed the crime did not understand or was unaware that the crime they committed was against the law. An example of Mistake of Law is when someone driving thinks they are driving at the right speed, when they are actually driving over the speed limit. Mistake of law is not a common defense because it is difficult to prove.

Mistake of Fact- Mistake of Fact takes place when the person committing the crime did not understand an element of the crime and the mistake must be reasonable. A common example of Mistake of Fact is when someone takes an item that they believe is theirs.

  • Authorized to Enter: Similar to consent, if a person grants authority to the defendant, it might serve as a defense against criminal charges. On the other hand, the burden or liability may be shifted to the other party. The Authorization to Enter is a defense but it may not exceed the scope of the permission to enter. A common example of authorization to enter, is when the defendant is given a key card to enter a building after hours.

Based on these defenses, the facts of every breaking and entering case will vary.

What Are Some Possible Legal Consequences of Breaking and Entering?

Breaking and entering is usually classified as a misdemeanor crime. However, some jurisdictions consider burglary a felony. In both cases, this will result in consequences such as some jail time and criminal fees. If severe property damage is involved, the defendant may be required to pay criminal restitution in order to pay for the damage.

Under certain circumstances, where the burglary is a felony, a more severe penalty will be enforced (this could mean additional damages depending on the severity of the damages to the property of the victim).

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

In most cases, breaking and entering is a complex legal case to deal with. You may need to hire a criminal defense lawyer if you need assistance with breaking and entering, or any defenses. Your attorney will help you identify whether any defenses will be applicable to your situation. Furthermore, your lawyer can be on hand during trial to represent you during any court hearings, proceedings and trial if necessary.