What constitutes the crime of breaking and entering varies by state. Generally speaking, the term refers to a person (or people) going into a home, building, or other sort of dwelling without the owner’s permission or consent. The definition often contains the stipulation that the act must have been done by force. However, the amount of force used could be slight, and does not need to be violent or vigorous in order to meet the definition.

An example of this would be if a person pushes open a door and walks into another person’s home without their permission or consent. Such an action would meet most state’s definition of forceful entry, as long as the act involves moving an obstruction to entry, it may be considered forceful entry.

If there is also intent to commit a crime once inside, such as breaking into a home to steal valuables or breaking into a car with the intent to steal said car, the crime is then considered burglary. Breaking and entering, as its own crime, is generally considered to be a misdemeanor and is associated with illegal trespassing. However, breaking and entering is often also associated with the crime of burglary, which is a generally classified as a felony. In such cases, the charge of breaking and entering will generally be absorbed into the charge of burglary, resulting in a felony charge.

What Are the Penalties & Charges for Breaking and Entering?

As with what constitutes the crime of breaking and entering, punishments for breaking and entering may vary according to state laws. Penalties and charges will also vary if the court determines that the defendant intended to commit a felony while on the property.

Past criminal history, as well as the time of day in which the crime was committed, are some additional factors that may determine penalties and charges for breaking and entering. An example of this would be how breaking and entering at nighttime is generally punished more severely than the same crime committed during the day.

The average jail time for breaking and entering, as a misdemeanor crime, is a maximum of one year. This sentence is to be served in a county jail facility. Other consequences that may be involved in a breaking and entering sentence, as a misdemeanor, could include:

  • Court-ordered community service hours;
  • Fines, generally less than $1,000;
  • Criminal restitution, or repayment in instances of property damage; and/or
  • Probation, either independently or paired with jail time.

As previously mentioned, misdemeanor breaking and entering may be elevated to a felony crime when it is associated with burglary. However, breaking and entering can itself be a felony crime if there are any aggravating factors present. Aggravating factors can be defined as any circumstance related to the crime in question that, somehow, makes the crime itself worse. In terms of breaking and entering, examples of aggravating factors could include:

  • Severe property damage caused while breaking and entering;
  • Theft of a considerably large amount of money and/or valuable goods; and/or
  • Causing serious bodily harm or injury, or death, to another person while entering.

Are there any Defenses to Breaking and Entering?

Valid defenses to breaking and entering will vary based on several factors. State laws and definitions, the circumstances of the crime, and the defendant’s past criminal record are a few examples of this.

The two most common defenses to breaking and entering are mistake, and consent:

  • Mistake: If the defendant made a genuine mistake, a judge may rule that the mistake defense is a valid one. An example of this would be if the defendant thought that they were entering a valid property that looks very similar to their own, or property that they had permission to enter; and
  • Consent: If it is found that the defendant had obtained consent from the owner prior to entering the property, the court could rule the consent defense as valid. In such cases, the court would most likely dismiss the charges.

As with any type of property crime, a defendant can sometimes claim a necessity defense. Under this type of defense, the defendant would claim that it was necessary to enter the property, in order to avoid an emergency or injury. With the right defense, the liability for the crime could shift to a different party. This could be a security guard or front desk operator who allowed the defendant to enter the plaintiff’s property without permission.

A legitimate defense could lower a breaking and entering penalty by reducing the severity of the penalties. Additionally, a strong defense could reduce breaking and entering charges from a felony, to a misdemeanor.

Is It Breaking and Entering if You Live There?

Simply put, no, it is not breaking and entering if you live in or on the property. If it is the defendant’s own house or property, it cannot be defined as breaking and entering. As previously mentioned, the crime is generally defined as entering someone else’s property without their consent. If a person enters their own property, they obviously have their own consent to do so.

An issue may arise if someone else lives in the home, and is trying to prevent you from entering, for whatever reason. That is an entirely separate issue and does not involve the crime of breaking and entering. You cannot burglarize your own home, by definition.

Do I Need an Attorney for Help with Breaking and Entering Charges?

Breaking and entering charges can quickly escalate, from a misdemeanor to a felony. If you are facing breaking and entering charges, you should immediately consult with a skilled and knowledgeable criminal law attorney.

An experienced criminal defense attorney can determine whether there are any defenses available to you based on the specifics of your case. Finally, an attorney can also represent you and your rights in court as needed.