Burglary Lawyer in Virginia Explains Offense

Fairfax Criminal Defense Attorney and Felony Lawyer Explains Burglary in Virginia

Felony LawyerA Virginia Burglary offense is criminal in nature, as most people who are not lawyers already are fully aware.

Unlike theft cases, however, burglary may or may not involve stealing something. Our Fairfax criminal lawyer and felony attorney serves in Northern Virginia court systems and explains the relevant burglary laws in Virginia on this page. For theft offenses, you may wish to view our Virginia larceny or Virginia embezzlement pages.

Penalties for a Virginia Burglary Conviction

While a crime such as larceny may be a misdemeanor offense (e.g., petit larceny), burglary1 is considered more serious and is punishable as either a Class 2 or Class 3 felony. It is a Class 2 felony if the burglary offense is alleged to have been committed with a deadly weapon. A Class 2 felony could result in life in prison

If no deadly weapon is implicated, then the offense is a Class 3 felony. A Virginia Class 3 felony could result in 20 years in prison.

The prosecution must prove the elements of burglary beyond a reasonable doubt to secure a conviction. The elements of burglary include:

  • entering the premises (this is discussed in more detail below);
  • entering a particular type of area (also discussed in more detail on this page); and,
  • possessing the intent to commit a specific offense (murder, robbery, rape, larceny, arson, or any felony).

Breaking and Entering with Intent to Commit a Misdemeanor is a Felony

If the alleged breaking and entering occurs with the intent to commit a misdemeanor (other than assault and battery or trespass), then the defendant faces a Class 6 felony. However, if armed with a deadly weapon, the defendant faces a Class 2 felony.


If the defendant is alleged to have entered a bank while armed with a deadly weapon (either day or night, it does not matter), and the court finds that he or she possessed the intent to steal money (cash, bonds, notes, or other forms), the conviction will be classified as a Class 2 felony.

Burglary Defense – Breaking and Entering

  • Burglary during the night: If the accused is alleged to have entered at night, then it does not matter whether or not there was a breaking (such as, breaking a lock or other entry point).
  • Burglary during the day: if the entry occurred during daytime, breaking or forcible entry is an element the prosecution must prove to convict someone of burglary.
  • Concealed Entry Burglary: In any event, entry combined with disguise or concealment meets the requirement for purposes of burglary in Virginia.

It should be noted by any person who is facing a pending burglary charge that even very slight force may establish breaking and entering. As the court2 has put it,

the force must be applied to something attached to the premises and relied upon by the occupant for safety.

Premises Where the Burglary is Alleged to Have Occurred

Burglary is a crime against habitation, and as such, the habitation element in Virginia includes a:

  • business
  • home or residence
  • store
  • storage facility
  • warehouse
  • church or place of worship
  • ship or vessel
  • railroad car
  • bank
  • mobile home
  • automobile if used as a home
  • trailer, and/or
  • an outhouse if it is adjoined to a dwelling.

In Virginia, a dwelling house is only considered a dwelling house in the context of a burglary offense if it is a building in which people normally sleep and partake in other tasks related to living there.

Additionally, if no one is in the home when the alleged burglary occurred, then it is still considered a dwelling house, unless the regular residents did not intend to return. These complicated matters are issues a local Virginia criminal defense attorney or local Fairfax criminal lawyer would analyze when representing a defendant accused of burglary.

Burglary Defense: The Intent Element of a Virginia Burglary Prosecution

The intent to commit a crime is an underlying element of the offense of burglary. The intent is different conceptually from many other crimes. The intent required does not solely refer to intent to enter the premises illegally, but also the intent to do something illegal once inside.

For example, if one enters a person’s home or a business with the intent to steal something, then the intent element is satisfied assuming the prosecution can prove it. Intent to commit any felony likewise satisfies the requirement of burglary. A felony lawyer and/or a local Fairfax criminal attorney can explain how the prosecution might try to prove the intent in a burglary case. Providing your criminal defense attorney with all of the facts surrounding the case is essential to securing the best possible outcome given the circumstances.

How Can the Commonwealth Attorney Prove Intent to Commit a Felony (or other delineated offense)

Intent is a mental state of mind, and as such, the prosecution generally relies on circumstantial evidence when trying to prove a defendant’s intent. Circumstantial evidence is used to persuade the trier of fact (the judge or jury) and may require multiple exhibits.

To illustrate the point and to foster a better understanding of circumstantial evidence, presumptions, and inferences, consider the following ways by which the Commonwealth of Virginia has been known to infer or presume intent, as found in Virginia case law by our Virginia-serving Fairfax criminal lawyer and felony attorney (finding a criminal defense lawyer who understands the way the courts have treated various issues in the past is vital)…

Unauthorized Presence

The prosecution may allege that the defendant was present in the house or building without authorization.  Unauthorized presence may sometimes be used to infer that the accused person intended to commit a felony inside.3

Possession of Certain Tools

There is a presumption of intent (and the Commonwealth routinely does rely on this presumption) if the defendant was found to be in possession of tools used for the purpose of burglarizing. The defendant may be able to successfully rebut (or fight) this presumption, however, if he or she is a licensed dealer of the evidence (tools).

The presumption that the accused person possessed the intent can be rebutted by the defendant. In other words, if a defendant is found to be in possession of burglarious tools, it is not automatically proof of intent, but shifts the burden to the defendant (or defendant’s criminal lawyer) who would then (in some cases, if the strategy is as such), explain why he or she possessed (or did not possess) the tools.4

Possession of Stolen Property

We have mentioned the fact that in Virginia, a theft offense is a separate charge from burglary. They are, however, sometimes connected. We also stated that burglary requires an intent to commit a crime within the premises, and one such crime is larceny (the intentional taking and carrying away of property belonging to someone else).

There is another aspect to consider, concerning the overlap between theft and burglary. In this section we have been discussing how the Commonwealth may seek to prove the intent to commit a crime, and we have said circumstantial evidence, inferences, and presumptions are often involved. Yet another inference relates to possession of stolen goods.

It seems relatively obvious perhaps: if a person is found to be in possession of items that were stolen, then there is an inference that the prosecution may try to raise that the individual in question committed the burglary, assuming he or she cannot explain why they are in possession of those goods.5

Note: typically a criminal defense attorney will suggest to his or her client the they not testify. Doing so enables the prosecution to cross-examine the defendant, and often, a defendant on the stand (testifying) unknowingly makes incriminating statements. It is however, a right possessed by every defendant in the United States to testify if he or she so chooses.

If faced with a Burglary charge in Virginia… Contact a Felony Lawyer

While we strongly believe any criminal offense, no matter how serious — regardless of felony or misdemeanor status — ought to be handled by a Virginia criminal defense attorney. Burglary is a very serious offense, and any such charge or related charge (including conspiracy, attempt, or accomplice liability), should not be handled by the defendant alone.

As mentioned on this page, a conviction could lead to many years (or life) in prison. In addition to prison and a monumental fine, it will be hard for a convict to obtain employment, because a conviction will remain on an adult’s criminal record forever in Virginia.

Our Northern Virginia and Fairfax criminal attorney can help an accused person understand the laws and application of a possible burglary defense. Even if a charge is dropped or not prosecuted, the arrest will still be a matter of public record. The only way to seal it from public view is to expunge the record. In Virginia, the expungement process is complex. In Fairfax County, it is especially complex. Our Fairfax criminal lawyer understands the process, however, and is happy to discuss expungement services with any person who has a prior arrest on their record.

Since the Commonwealth of Virginia takes all felonies (and misdemeanors) very seriously, time is not on the accused’s side. The evidence against a defendant should be examined and analyzed by an experienced Virginia criminal lawyer.

Virginia Burglary Law References Cited by Our Felony Attorney

The Code of Virginia

[1] § 18.2-90

See Also:

§ 18.2-89

§ 18.2-91

§ 18.2-92

§ 18.2-93

§ 18.2-94

Virginia Burglary Case Law

[2] Phoung v. Commonwealth, 15 Va. App. 457 (1992)

[3] Ridley v. Commonwealth, 219 Va. 834 (1979)

[4] Carter v. Commonwealth, 223 Va. 528 (1982)

[5] Bright v. Commonwealth, 4 Va. App. 457 (1992).

Image Reference: “Robber Hiding Under A White Wall” by chanpipat via freedigitalphotos.net

The following two tabs change content below.
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.


Speak Your Mind