Breaking and entering is is legally defined as an unlawful entry, by force, into a residence, building or other enclosed property. For this specific criminal act, any amount of force without any authorization is considered enough — even the “slightest amount,” such as pushing open a door. 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. It is derived from illegal trespassing, which occurs when a person enters or remains on another person’s property without the consent of the owner. This generally refers to houses, apartments, and office buildings, but it can also include automobiles or even aircraft. However, breaking and entering is often also associated with the crime of burglary, which is a felony. As previously mentioned, burglary is typically defined as “breaking and entering with the intent to commit a felony while on the premises.”
In such cases, the charge of breaking and entering will generally be absorbed into the charge of burglary. This would result in a felony charge. Misdemeanor charges result in jail sentences of less than one year; felony charges usually involve jail sentences greater than one year, among other punishments.
Punishments for breaking and entering may vary according to state laws; punishments will also vary if the court determines that there was intent to commit a felony while on the property. Some typical punishments for breaking and entering as a misdemeanor crime include:
- Imprisonment, usually less than one year sentence;
- Probation, sometimes independently or paired with a jail sentence;
- Criminal fines, generally less than $1,000 when a misdemeanor charge;
- Criminal restitution, or repayment in instances of property damage; or
- Community service.
Past criminal history, as well as the time of day in which the crime was committed, are some factors that may determine punishment for breaking and entering. Breaking and entering at nighttime is generally punished more severely than during the day.
As previously mentioned, the misdemeanor crime of 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 aggravating factors present in the case. According to criminal law, aggravating factors are defined as any circumstance related to the crime in question that, somehow, makes the crime itself worse.
With regards to breaking and entering, aggravating factors may include:
- Severe property damage when breaking and entering;
- Theft of a considerably large amount of valuable goods; or
- Causing serious bodily harm, injury, or death to another person when entering. For example, injuring a security guard in order to gain access to the building.
There are a few defenses to breaking and entering. As with any type of property crime, a defendant may claim a necessity defense. With this type of defense, the defendant claims it was necessary to enter the property in order to avoid an emergency or injury. The facts surrounding the case will determine any available legal defenses. Some other defenses include:
- Consent: One of the key components of breaking and entering is that the property was entered without the consent of the property’s owner. If the owner of the premises did in fact consent to the defendant’s presence on the premises, that consent could serve as a defense; or
- Mistake: Another component of breaking and entering is that the defendant intended to break into the premises belonging to another person. If the defendant can prove that they made a mistake and entered the property thinking it was their own, such as entering a vehicle they believed to be theirs because it was identical, this could serve as a defense.
The facts and circumstances surrounding each individual breaking and entering case will prove to be especially important when determining defenses, if any. And, the liability may shift to a different party, such as a security guard or front desk operator who allowed the defendant to enter the plaintiff’s property.
Breaking and entering is a serious crime that can become even more serious, depending on specific factors. The charges can quickly escalate from a misdemeanor to a felony, with the punishments escalating as well. Each state has their own set of penalties for the crime of breaking and entering, as well as the crime of burglary.
It is important to consult with a knowledgeable and qualified criminal defense attorney as soon as possible if you are facing breaking and entering charges. The criminal defense attorney will be able to help you better understand your state’s laws and penalties. They will present you with any applicable defenses, and represent you in court.