Virginia Common Law and Statutory Burglary Crimes

Each state has its own laws defining burglary and related offenses. Virginia law provides a unique distinction between common law and statutory burglaries not found in many other states. Learn how Virginia defines and penalizes burglary offenses.

Burglary Crimes in Virginia

In Virginia, common law burglary is defined as breaking and entering into a dwelling house at night with the intent to commit a felony or any larceny (theft) therein. (This crime closely mirrors the original definition of the crime, which the United States inherited from the common law of England.)

Virginia law also contains several additional burglary statutes. These statutory crimes are broken into several categories, based on whether a breaking and entry (or only unlawful entry) took place, what time of the day or night the crime occurred, what kind of building or place was involved, and what crime the defendant intended to commit.

(Va. Code § 18.2-89 (2023).)

How Is Burglary Defined in Virginia?

Burglary can generally be defined as (1) an unlawful breaking or entering of (2) a dwelling or place (3) during the day or nighttime (4) with the intent to commit a crime inside. The prosecutor must prove all of these elements beyond a reasonable doubt (or the defendant must admit to them) for a conviction.

Breaking and entering. Breaking requires that the defendant use some degree of force, even if slight, and physically pass into a building. Entering can also be slight, as long as it follows a breaking. For example, someone who nudges open a door, reaches their arm into the house, and grabs a purse sitting near the door satisfies both parts of breaking and entering.

Dwellings and other structures. A person can only commit "common law" burglary by entering a dwelling (a home), though the occupant does not need to be present. Statutory burglaries protect dwellings along with other buildings or places, including adjoining occupied outhouses, buildings permanently affixed to realty, churches, watercraft, and any motor vehicle used as a place of habitation (like an RV).

Intent to commit a crime inside. To be convicted of burglary, the defendant must have decided to commit a felony or some other crime at the time of entry. It doesn't matter whether or not the defendant actually completes the crime—intent is sufficient. The prosecutor can try to prove the defendant's intent using circumstantial evidence, such as the defendant carrying a bag of common burglar tools inside the house.

(Va. Code § 18.2-89 (2023).)

What Are the Penalties for Common Law Burglary in Virginia?

As noted above, common law burglary occurs when a person breaks and enters into a dwelling house at night with the intent to commit a felony or any larceny inside. Common law burglary is usually a Class 3 felony, which incurs a $100,000 fine and five to 20 years in prison. However, the offense increases to a Class 2 felony when the defendant is armed with a deadly weapon at the time of entry. A Class 2 felony carries penalties of 20 years to life in prison and a $100,000 fine.

(Va. Code §§ 18.2-10, -89 (2023).)

What Are the Penalties for Statutory Burglary in Virginia?

Statutory burglary offenses were created to address crimes that did not fall into the traditional common law burglary definition. Penalties vary depending on the intended crime.

Burglary With Intent to Commit Murder, Rape, Robbery, or Arson

A defendant who:

• enters a dwelling at night
• breaks and enters a dwelling at any time, or
• enters and conceals oneself in a dwelling at any time,

with the intent to commit a murder, rape, robbery, or arson inside, commits a Class 3 felony. The offense increases to a Class 2 felony if the defendant was armed with a deadly weapon at the time of entry.

A person guilty of a Class 3 felony faces five to 20 years in prison and a $100,000 fine. A Class 2 felony carries 20 years to life in prison and a $100,000 fine.

(Va. Code §§ 18.2-10, -90 (2023).)

Burglary With Intent to Commit Other Felonies, Larceny, or Assault and Battery

This burglary category includes defendants who intend to commit any felonies not mentioned in the section above (murder, rape, robbery, or arson) or any larceny or assault and battery (regardless of their offense level). Such an offense carries a felony penalty of one to 20 years in prison. At the discretion of the judge or jury, the defendant instead can be sentenced to a misdemeanor, punishable by up to 12 months in jail and a $2,500 fine.

If the defendant was armed with a deadly weapon at the time of entry, however, the offense increases to a Class 2 felony, which incurs a fine of up to $100,000 and 20 years to life in prison. Additionally, a bank burglar is subject to the Class 2 felony punishment.

(Va. Code §§ 18.2-10, -91, -93 (2023).)

Burglary With Intent to Commit Other Misdemeanors

An unarmed person who breaks and enters a dwelling while occupied, in either the day or night, with the intent to commit a misdemeanor other than trespass or assault and battery is guilty of a Class 6 felony. This low-level felony incurs one to five years in prison. Or, at the discretion of the judge and jury, the defendant can be sentenced to a misdemeanor, punishable by 12 months in jail and a $2,500 fine. An armed offender, however, commits a Class 2 felony with a possible punishment of 20 years to life in prison and a $100,000 fine.

(Va. Code §§ 18.2-10, -92 (2023).)

Possession of Burglar's Tools or Implements

A person who possesses any tools or implements with the intent to use them for a burglary commits a Class 5 felony. Such an offense carries penalties of one to ten years in prison or, at the discretion of the judge or jury, 12 months in jail and a $2,500 fine.

(Va. Code §§ 18.2-10, -94 (2023).)

Talk to a Lawyer

If you have been charged with burglary or a related crime, or if you have questions about state laws, consult a qualified local criminal defense attorney. An experienced lawyer can review the unique facts of your situation and advise you on how the law will apply to your case.