Is Breaking and Entering a Felony in Virginia?

In most cases, yes. Breaking and entering is a felony in Virginia. However, in certain scenarios your attorney can negotiate the charges down to a misdemeanor.

Yes. In most circumstances, breaking and entering is a felony in Virginia, punishable with both jail time and hefty fines.

However, the court may occasionally decide to downgrade this crime to a misdemeanor. This is an important distinction, as, in Virginia, a felony conviction can have long-lasting consequences that can significantly impact your life.

In this article, we’ll go over times when the state might decide to charge breaking and entering as a misdemeanor, rather than a felony.

We’ll also talk about how the penalties for felony and misdemeanor breaking and entering can differ depending on the situation.

What Counts as “Breaking and Entering” in Virginia?

Burglar wearing a balaclava looking through the house window

In Virginia, breaking and entering, commonly referred to as “statutory burglary,” refers to the act of illicitly entering another person’s home in order to commit a crime.

It’s important to note that statutory burglary is different from trespassing, which is the relatively minor offense of entering another’s property during the day without the intention to commit a crime.

Similarly, statutory burglary is also different from common law burglary, which is a separate but very similar charge for breaking and entering at night.

The penalties for statutory burglary can vary depending on (1) the associated crime, and (2) whether you were armed at the time.

Below is a breakdown of the punishment for some common statutory burglary offenses:

When is Breaking and Entering a Misdemeanor in Virginia?

The investigator takes fingerprints from the suspect in the crime. Investigation is a crime.

Ultimately, only the state’s attorney and the court can decide the severity of a charge. However, they may decide to try breaking and entering as a misdemeanor if both of the following statements are true:

  • The instance of breaking and entering was with the intent of committing a crime such as larceny, trespassing, assault, or certain non-violent felonies, as noted in the Virginia Code (i.e. you committed “statutory burglary” instead of common law breaking and entering).
  • You were unarmed during the commission of the crime.

If both of these are true, you may be able to either:

  • Convince the court to charge the offense as a Class 1 misdemeanor instead of a felony; or
  • Convince the court to punish the offense as a Class 1 misdemeanor without amending the felony charge to a misdemeanor on the court’s record.

To expand on an example from above, if you enter a home with the intention to commit a misdemeanor such as petty larceny, while unarmed, the crime will usually be charged as a Class 6 felony.

However, because this crime meets the two criteria we noted above, you may be able to negotiate the charges down to a misdemeanor. Similarly, the court also has the discretion to treat this crime as a Class 1 misdemeanor during during your trial or sentencing.

Why Does It Matter?

In Virginia, felonies have considerable consequences that misdemeanors do not. These include the loss of many rights, including your right to vote and your right to own firearms, as well as significantly harsher punishments.

For example, while felony charges can lead to years in jail, judges almost always assign sentences of less than 12 months for misdemeanor cases.

For these reasons and more, it is always in your best interests to argue the charges down to a misdemeanor.

Conclusion

Statue of justice

While it is possible for the court to reduce a felony breaking and entering charge to a misdemeanor, this can only happen under very specific circumstances.

In general, you must have committed breaking and entering for the purpose of carrying out a specific crime such as larceny or assault, and you must have been unarmed while doing so.

In any case, breaking and entering is a very serious crime that can have a longlasting impact on your life. For this reason, you should hire an experienced criminal defense attorney as soon as possible after your arrest.

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