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Burglary Defenses

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What Is Burglary?

Burglary is defined as the unlawful entry into a building, with the intent to commit a crime in the structure. Some jurisdictions include other elements, such as breaking and entering at nighttime, or intending to commit a felony. Burglary is sometimes classified as a “crime against the habitation,” although the building does not usually need to be a home.

Since there are so many elements to the crime of burglary, many cases that seem like burglary actually are not. For example, if the defendant was granted access to the building, it will not be considered burglary. Or, if they did not intend to commit a crime, it also would not be considered burglary, even if the entry was illegal. However, they may be guilty of other crimes like larceny.

Are There Any Defenses Against Burglary Charges?

Probably the best defense against a burglary charge is where all the necessary elements of proof have not been met. As mentioned, all the elements need to be satisfied in order to be guilty of burglary. Defenses raised in relation to the elements of burglary are called “affirmative defenses.” These may include:

  • Unlawful entry: The defendant was granted permission to enter the premises, and the entry was not illegal.
  • Intent to commit a crime: The defendant did not actually intend to commit a crime at the time that they entered the building, structure, or dwelling place.
  • Not a “building or structure”: Burglary charges usually do not apply to open spaces or places that are not actually structures. The point is that someone’s building is being entered for the purpose of committing a crime inside. However, some jurisdictions consider yards and gardens to be part of the dwelling place. Texas even has a law pertaining to burglary of coin machines.

Other criminal defenses may be applicable to burglary cases, including:

  • Intoxication: Burglary requires the intent to commit a crime once inside the structure. If the defendant was intoxicated to the point where it prevented them from forming such intent, it will serve as a defense (even if the intoxication was voluntary).
  • Actual innocence: The defendant did not actually commit the acts in question.
  • Coercion: It is a defense if the defendant was forced to commit the acts under the threat of harm, physical injury, or death, it will serve as a defense.
  • Consent: If the plaintiff consented to the defendant’s acts, it may serve as a defense. For example, if they consented to the person’s entry, or allowed them to take an item of property, it may negate an element of burglary. However, the consent needs to be voluntary, and the plaintiff needs to be of legally capable of consenting.

Again, it is common for burglary defenses to result in the charges being lessened from burglary to a less serious crime, like petty theft or breaking and entering. Also, burglary can be confusing, and many people attempt to file a burglary charge when really it is an entirely different crime in question. Be sure to consult with an attorney if you have questions about burglary laws in your area. 

Do I Need a Lawyer for Assistance with Burglary Defenses?

Burglary is probably one of the more misunderstood areas of criminal law. If you are facing burglary charges, you may wish to speak with a criminal defense attorney immediately. Ignorance of the law is not a valid defense, but a qualified criminal lawyer can advise you on your options in terms of raising a defense.   

Photo of page author Adam Vukovic

, LegalMatch Legal Writer

Last Modified: 05-02-2018 06:47 PM PDT

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