Arson Defense in Virginia by Fairfax Criminal Attorney

Northern Virginia Defense Attorney and Fairfax Criminal Lawyer Explains the Virginia Arson Law and Arson Defense

arson defense and Virginia arson laws explained by a Fairfax criminal attorneyCrimes against the habitation in Virginia include trespassing, burglary, arson, and spying into a dwelling or enclosure.

These crimes may involve other offenses in some circumstances, or they may be charged along with other offenses.

Our Fairfax criminal lawyer discusses arson on this page.

Arson is a criminal offense involving the malicious destruction or burning of a building.2

To convict someone of arson in Virginia, the prosecution must prove beyond a reasonable doubt that:

  • the defendant caused a slight to severe burning (as the court has explained the crime of arson, the fire must be of an incendiary origin and the defendant must have been a guilty agent in the burning)
  • of a dwelling.1

The point to take away from the first element above (the incendiary origin of the burning) does not only mean something burned or involved fire, but that the fire was not actually caused by some other means (as in, an accidental electrical fire).

This may seem rather straightforward, but consider the nuances below, as explained by our Virginia criminal defense attorney (specifically, issues related to burning and what is considered a dwelling for purposes of the crime of arson in Virginia).

Arson in Virginia
Main Points Explained by a Virginia Defense Lawyer & Fairfax Criminal Attorney

Not only is a defendant who is accused of arson subject to prosecution, but any person who helped him or her as an accomplice (even someone who advises the defendant, or who helps the defendant obtain the incendiary materials used) can also be convicted of arson.3


Since long ago, the act of causing destruction by fire has been something outlawed by almost every civilization. It is something the Common Law (with origins in England) as well as Virginia law specifically punishes with particular statutes.

The foremost element is broadly related to burning. The offense of arson could involve a typical fire scenario started by an accelerator (but not necessarily), or it could implicate a bomb or explosive device or other rare materials and substances/chemicals.

Structure or Dwelling

Under Virginia law, arson involves burning of a dwelling. What exactly is considered a dwelling? And does it matter if the alleged burning or arson takes place at night as opposed to during the day? The answer to both of these questions may surprise some people.

First, a dwelling is any building in which people normally stay or can be found or reside. It includes not only a typical house, but also:

  • hotels
  • hospitals
  • treatment facilities
  • churches and synagogues
  • mosques
  • railroad cars
  • jails
  • trailers
  • and even boats, among others.

Even though it is a criminal offense to burn any dwelling at any time, it is punished more severely if it is alleged to have occurred at night. The public policy behind this legal nuance is most likely due to the fact that it is more likely that people will be asleep at night, and therefore at an increased risk of harm.

The Role of Circumstantial Evidence

An arson prosecution usually involves some level of circumstantial evidence. Circumstantial evidence may relate to motive, means, opportunity, conduct, and place of the accused. But when circumstantial evidence is relied upon by the prosecution it must:

point unerringly to the guilty party1

This means that if a person is convicted of arson based upon circumstantial evidence, every reasonable theory of innocence must be ruled out.

Virginia Arson Penalties

Main Arson Law
Covering Dwelling Houses and Places People Dwell

The main Virginia arson law applies to the following buildings and structures:

any dwelling house or manufactured home whether belonging to himself or another, or any occupied hotel, hospital, mental health facility, or other house in which persons usually dwell or lodge, any occupied railroad car, boat, vessel, or river craft in which persons usually dwell or lodge, or any occupied jail or prison, or any occupied church or occupied building owned or leased by a church that is immediately adjacent to a church2

If Considered Occupied6

If a person maliciously burns or uses an explosive device (in whole or in-part), or in some way causes the burning or destruction alleged, (or if he or she helps another do so), then the defendant must be sentenced to:

  • at least five years in prison, but could be sentenced to life
  • a fine up to $100,000

 If Considered Unoccupied7

If the burning involves an unoccupied building or structure listed above, then the offense is punishable as a Class 4 felony. A Class 4 felony in Virginia results in:

  • At least two years in prison, and up to 10 years
  • Possible fine up to $100,000

Other Arson-related Laws and Penalties

There are numerous laws to cover various types of arson-related offenses. Other than the primary law, there are statutes to address public buildings such as meeting places (not regularly a place where one would sleep); structures such as bridges and dams; and burning of personal property.

Some Meeting Places (e.g., courthouse, school, etc.)

If the building that is destroyed is considered a structure for public use8 such as a courthouse or school, then depending upon the facts of the case, the defendant faces a Class 3 or Class 4 felony if convicted. A Class 3 felony comes with a jail sentence of at least 5 years, and up to 20 years. A Class 3 felony sentence, as indicated above, will result in at least 2 years, and up to 10 years.8

Burning Infrastructure-like Structures (e.g., bridges, dams, etc.)

If the offense involves a structure such as a bridge or dam, and is not covered by some other arson statute, the offense is a Class 3 felony if a person is inside or on the structure. If no person is in or around the structure and the property involved is valued at $200 or more, then it is a Class 4 felony offense. If no person is inside or on the structure, but the value is less than $200, then the offense is considered a Class 1 misdemeanor.9

Personal Property

A specific law10 punishes any person found guilty of intentionally (or aiding another in) burning/destroying by explosive/destroying by substance personal property or crops. If the property is valued at $200 or more, it is a Class 4 felony; if less than $200, it is a Class 1 misdemeanor. This law specifically mentions the mental state (intent) as being one of malice or intent to defraud an insurance company.

Burning Grass, Fences, or Woods

If there is no building or structure involved, and if the defendant is accused of maliciously setting fire to a wooded area, grass, or fence (or anything that can catch fire over an area of land), then he or she faces a Class 6 felony. Note: the statute11 refers to the mental state as one of malice, not negligence. A different law covers non malicious burning of wooded areas, grass, or open areas.12

There are many more laws related to bombs or explosive devices, threats related to such devices, and other offenses. The offenses our criminal lawyer has covered on this page, however, are some of the more commonly known and charged arson and arson-related crimes. In Northern Virginia, arson is not a particularly commonly charged offense.

Arson Defenses

Some defenses are applicable to all crimes. For example, no person can be found guilty if the prosecution does not meet the burden of proving the elements of an offense beyond a reasonable doubt. This is the standard for all criminal prosecutions. Similarly, if there is insufficient evidence, one cannot be convicted.

Insufficient Evidence

Sometimes, the circumstantial evidence is not enough. One real example involved a case5 with the following facts that, even when considered together, were not enough to amount to enough evidence to convict the defendant:

  • the fire was of incendiary origin
  • the defendant had the opportunity to be the perpetrator
  • the defendant had expressed negative sentiments toward the owner of the destroyed house

Fire was Accidental or
Reasonable Hypothesis of Innocence Exists

Usually a fire does not occur but for some accident. So, there is actually a presumption that any given fire is accidental. The presumption, of course, is rebuttable by the prosecutor (Commonwealth Attorney).4

References Cited by our Virginia Criminal Lawyer and Fairfax Criminal Defense Attorney

The Code of Virginia

[2] 18.2-77-80

[3, 6] Virginia Code 18.2-77(A)

[7] § 18.2-77(B)

[8] § 18.2-10 Felony Penalties (Classes of Felonies in Virginia) | § 18.2-79

[9] § 18.2-80

[10] § 18.2-81

[11] § 18.2-86

[12] § 18.2-88

Virginia Case Law

[1] Augustine v. Commonwealth, 226 Va. 120 (1983)

[4] Cook v. Commonwealth, 226 Va. 427, 309 S.E.2d 325 (1983)

[5] Garner v. Commonwealth, 2 Va. Dec. 458, 26 S.E. 507 (1897); Jones v. Commonwealth, 103 Va. 1012, 49 S.E. 663 (1905)

Image References: “Burned House” by think4photop | “Burned Abandoned House” by think4photop via

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Brenton D. Vincenzes is a lifelong Fairfax County resident and Fairfax Criminal Defense Lawyer. He is a member of the Virginia Association of Criminal Defense Lawyers, National College of DUI Defense, NORML, and has been awarded the following in 2014-15: Top 100 Trial Lawyer (National Trial Lawyers) Top 40 Under 40 Trial Lawyer (National Trial Lawyers) Nationally Ranked Top 10 Under 40 Defense Attorney (National Academy of Criminal Defense Attorneys) 10 Best in Client Satisfaction for Criminal Defense (American Institute of Criminal Law Attorneys) Nationally Ranked Top 1% Attorney Award Recipient (National Association of Distinguished Counsel) As a local leader, Mr. Vincenzes mentors troubled youths, volunteers his time to serve at his church, takes select pro bono clients, and strives to improve the community. Mr. Vincenzes represents men, women, and juveniles through zealous and diligent advocacy, strategic planning, and skilled trial work preparation. Mr. Vincenzes' areas of criminal law practice are broad, and include most felonies and misdemeanors such as: reckless driving, DUI & DWI, drug offenses, assault and battery, domestic violence, assault on an officer, destruction of property, alcohol offenses, firearm offenses, larceny, shoplifting, embezzlement, fraud, and other theft offenses, and moving traffic violations among others. His private legal services are available in most Northern Virginia jurisdictions, including Fairfax County, Arlington County, Prince William County, Loudoun County, Stafford County, Alexandria, Manassas, Leesburg, South Riding, and other cities and towns.



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