Virginia Trespassing Laws
Explained by our Fairfax Criminal Lawyer
Trespassing is a criminal offense, but compared to burglary and other crimes, it is a less serious offense against habitation. Other crimes against habitation discussed on our site include burglary, arson, and spying. But unlike burglary, arson, or spying, trespassing in Virginia is far more common.
Our Virginia criminal law firm and Fairfax criminal defense attorney recently analyzed more than 1,700 criminal charges to determine the frequency of various offenses, and trespassing ranked high, as one of the 18 most frequently charged offenses in Fairfax County.
Trespassing is a Class 1 misdemeanor, and as such, is on the same plane as a first-DWI and many other very serious offenses. A Class 1 misdemeanor is punishable by up to 12 months in jail, and thousands of dollars in fines.
There are various ways in which a person can be alleged to have violated Virginia trespassing laws. To understand this offense, first consider that trespassing offenses involve some sort of warning or notice that either is ignored, or unnoticed by the defendant.
In Virginia, a trespassing violation1 may result if a person does not leave the premises belonging to another person, and after receiving a warning or order to leave (or notice by way of signage). Such a warning may come in various forms:
- oral request or order to leave (and/or not return)
- written request or order to leave (and/or not return)
- posted sign forbidding trespassers, and others.
Interesting Points about Virginia Trespassing Laws
Our Virginia criminal defense attorney makes a few interesting observations in this section of our website, including:
- the purpose of the Virginia trespassing laws (as articulated by courts in Virginia)
- the relation (if any) to the crime of burglary; and,
- possible trespassing defense theories.
The purpose of the Trespassing Laws in Virginia
The Virginia trespassing laws are said to exist for the sole purpose of protecting rights of owners (or people with lawful control) of property.2
Is Trespassing Related to Burglary?
The courts in Virginia ruled trespassing is not to be considered a lesser-included offense of burglary. In other words, a court conducting a trial does not have the ability to find a person guilty of trespassing if the defendant was indicted for burglary.
Normally, if an offense is a lesser-included offense of the original charge, then the judge or jury can convict a person of the lesser-offense.4
Fairfax Criminal Lawyer Highlights Possible Virginia Trespassing Defenses
There are many feasible defense theories applicable to any given criminal statute. Whether or not a particular defense is available (or would be intelligently used by a Virginia defense attorney), typically depends on the facts surrounding the case. There is no substitute for a legal professional’s opinion. Many local Northern Virginia criminal lawyers offer free consultations.
The Defendant did not Willfully Trespass
To be convicted of trespassing in Virginia, the defendant must have willfully remained on the land or premises, or willfully returned to the land or premises (in addition to the notice requirement mentioned above). But if the defendant was not acting willfully, then he or she was not trespassing.3 How could this scenario unfold in the real world? The possibilities are endless. Here are a few potential ways one might not be willfully violating the Virginia trespassing laws (but note: these are hypothetical scenarios, not necessarily actual case facts):
- The defendant was not conscious when transported and left on the premises;
- The defendant was suffering a delusion and did not willfully intend to be where he or she was forbidden;
- The defendant may have been involuntarily kidnapped and dropped off at a specific location;
- The defendant could be lost;
- The defendant could actually think he or she is on land owned another who has not forbidden their presence.
The Defendant Has a Bona Fide Claim of Right
A bona fide claim of right means the individual truly believes (even if mistaken) that they have a right to be on the premises. This does not necessarily require that the person thinks he or she actually is an owner of the property.
The courts have ruled that at the very least, the person must have believed they were authorized. In one case arising out of Virginia, there was testimony from a defendant that he honestly thought he was authorized to be on the premises, despite the fact that a police officer previously issued a trespass notice, due to his belief that the time he was not to return had lapsed. The court held that the jury was allowed to be instructed to consider this possibility as a defense.5
The Area in Question was a Public Thoroughfare
While publicly owned property can be a location an individual may be forbidden from remaining or returning to, the Virginia trespassing laws typically do not apply to what one might consider to be a public passage or thoroughfare.6 But the courts have also held that an alleyway is not a thoroughfare (but that case was unique in that it involved an alley located on property owned by the Housing Authority, but had been marked to give notice to prevent trespassing). Since the Housing Authority was able to show it had an agreement with the police to ensure the alley not be open to the general public, it was not intended for public use. Since it was not intended for public use, it was not considered a thoroughfare.7
Other Virginia Trespassing Laws
- Posting a No Trespassing sign could be a criminal offense in some cases.
- An individual could be charged with a criminal offense if he or she encourages another person to trespass.
- Entering the land of another with the intent to cause damage could be a Class 1 misdemeanor or a Class 6 felony.
Illegally Posting a Sign
It is against the law to intentionally place a No Trespassing sign on another person’s property without their permission.8
Encouraging or Causing another Person to Trespass
It is a Class 1 misdemeanor (just like trespassing in the general sense), to procure, urge, solicit, instigate, or exhort someone else to trespass, if the accused person knows the other has been forbidden (by a person authorized to forbid or by signage.10
Virginia Trespassing: Enhanced Penalty for Entering with Intent to Damage
If a person enters upon the land of another with the intent to damage or interfere with the rights connected to the premises, it is a Class 1 misdemeanor. But it is a felony if the person is accused of entering the land based on a racial or religiously based motive. Moreover, there is a minimum jail sentence of 30 days (active), and a minimum overall imposed jail sentence of six months.9
There are other trespassing-related offenses in Virginia our Fairfax criminal lawyer has not covered on this page. If you have been accused of a trespassing offense in Northern Virginia, the Vincenzes Law Firm can help you understand:
- whether or not you were within your rights
- whether or not a defense may be available, and
- what the applicable penalty may be based on the particular alleged crime.
For a consultation with no obligation, use our online case evaluation tool to schedule or request a time to speak or meet in person. Alternatively, you may call toll free: 888.659.6565. Remember: all criminal charges are public in nature, and unless expunged, remain on an adult’s record permanently.
The Code of Virginia Annotated
Virginia Trespassing Case Law
 Hall v. Commonwealth, 188 Va. 72, 49 S.E.2d 369 (1948)
 Reed v. Commonwealth, 6 Va. App. 65, 366 S.E.2d, 274 (1988).
 Shifflett v. Commonwealth, No. 2702-99-2, 2000 Va. App. LEXIS 843 (Ct. of Appeals Dec. 28, 2000)
 O’Banion v. Commmonwealth, 30 Va. App. 709, 519 S.E.2d 817 (1999).
 Johnson v. Commonwealth, 212 Va. 579, 186 S.E.2d 53, cert denied, 407 U.S. 925, 92 S. Ct. 2458, 32 L.Ed. 2d. 812 (1972)
 Miller v. Commonwealth, 10 Va. App. 472, 393 S.E.2d 431 (1990)
“NO TRESPASSING VIOLATORS WILL BE PROSECUTED” in front of an empty field of dead grass on a cloudy winter day. |Author =Rutebega via Wikipedia Commons
Brenton D. Vincenzes is a Northern Virginia and Fairfax criminal lawyer. Handling reckless driving, DWI, drug and marijuana possession, distribution, assault, domestic violence, and many other misdemeanor and felony offenses, Vincenzes Law, PLLC, pays att
Latest posts by Brent Vincenzes (see all)
- Virginia Traffic Lawyers: What to Look For - April 9, 2014
- Recent Virginia Expungement Laws and Cases Discussed by Northern Virginia Expungement Attorney - April 2, 2014
- Virginia Restoration of Driving Privileges Basic Introduction - March 21, 2014
- Virginia DWI Laws: Misunderstood? (Part 1) - March 13, 2014