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Burglary Defense: An Overview of Common Defense Tactics 

Burglary is defined as the unauthorized entry into another’s property, with the intent to commit a crime. Depending on the jurisdiction, other factors may be included such as:

  • The breaking and entering during the night, or
  • Entering with the intention to commit a felony.

Burglary can sometimes be referred to as the crime against the dwelling but it is important to recognize that the property being broken into does not have to be an actual building or structure. California categorizes burglary as either First Degree Burglary or Second Degree Burglary. First degree burglary in California, is respective to a dwelling (residence). Second degree burglary refers to all other structures such as businesses, storage units and more. First degree burglary is considered more serious in the eyes of the State and the prosecutors who will bring charges against you. In California, first degree burglary carries a mandatory prison time and a strike. A properly crafted defense by a qualified attorney can however result in a more favorable outcome.

When it comes to burglary, there are many factors involved that in some cases, burglary is not the crime that was committed. For instance, depending on the jurisdiction, if the accused was granted access to the dwelling, this case will typically not result in a burglary charge. Another example involves a person that entered into a property without lawful permission but did not intend to commit a crime. While the charges may not involve burglary, they may involve other crimes such as larceny. 

Developing a Defense Against Burglary Charges

In order to establish a strong defense against a burglary charge, it is important to dismiss the elements needed for a burglary charge. In legal terms, these defenses are also known as affirmative defenses and they may include the following:

  • Establishing a valid entry
    • Demonstrating that the accused was granted permission in order to enter the property, thus entering the premises legally.
  • Proving the lack of intent to commit a crime
    • Demonstrating that the accused did not enter the property with the intention to commit a crime.
  • Demonstrating that the property is not a dwelling
    • Depending on the jurisdiction, a burglary charge cannot be applied to cases where there is not physical structure. Some jurisdictions, however, can consider front and backyards as part of a building.

When establishing a defense for a burglary charge, the following defenses can also be used:

  • Being under the influence
    • One of the core elements needed in a burglary charge is that of intent. A valid defense would be to demonstrate that the accused person was intoxicated beyond being capable of forming intent.
  • Coercion
    • In the event that the accused committed the crimes under some form of threat may be a valid defense.
  • Consent
    • A burglary charge may be dismissed if the defendant obtained permissions to enter the building and take property out of the building. In order for the consent to be lawful, it must have been obtained on a voluntary basis and the owner of the property must be legally able to give the consent. 

Seek the Legal Support of a Qualified Attorney

It is not uncommon to have burglary charges be either completely dismissed or be lessened to a less serious crime. Burglary laws in the State of California can be complex and often confusing. If you or someone you know has been charged with burglary, seek the legal advice of an expert attorney.

The attorneys at Milligan, Beswick, Levine & Knox, LLP., have extensive experience in criminal defense cases. They are dedicated to ensuring that the rights of those being charged with a burglary crime are protected.

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Stephen Levine, is a Board Certified Specialist in Criminal Defense — an honor achieved by only the top criminal law attorneys in California. Mr. Levine has over 40 years of experience in criminal defense and family law serving Southern California, and is a highly regarded Super Lawyer as well as AV Rated attorney.