The phrase "breaking and entering" reflects a historical element of burglary crimes. Burglary used to be defined as "breaking and entering into a home at night with the intent to commit a felony." Modern burglary statutes have mostly eliminated the nighttime requirement and expanded the offense beyond just burglarizing "homes," but many still retain the phrase "breaking and entering." Other states made "breaking and entering" a separate offense from burglary. Below, we'll review what "breaking and entering" commonly means today and how it's punished.
In many states, a person commits burglary by "breaking and entering a building or structure without permission and with the intent to commit a crime inside." While these states retained the phrase "breaking and entering," the legal definition has changed significantly over time.
Traditionally, "breaking and entering" meant forcing entry into a building during a burglary (such as breaking a window or kicking in a door). But that's no longer the case. Under modern burglary laws, no actual breaking or force is required. Rather, using any amount of effort—however slight—suffices for a legal "breaking." For example, raising a window that has been left partially open would be considered breaking. Pushing open a door that's ajar also constitutes a breaking. Even tricking someone into letting them in a building may suffice (such as by claiming to be a repair person). And "entering" no longer requires that the person fully enter the building. If a person lifts open a window and reaches an arm in, the entry requirement has been met.
A few states have a separate crime called "breaking and entering." States commonly distinguish "breaking and entering" crimes from "burglary" crimes in one of two ways.
In some states, a person commits burglary by breaking and entering into homes or buildings that might be or are occupied. And the crime of breaking and entering applies only to those offenses where the building or structure isn't a home or occupied. Basically, these states created a tiered system where:
For instance, North Carolina's burglary law applies only to dwellings (homes), and the state has separate crimes of breaking and entering pharmacies, religious buildings, and buildings generally. The prohibited act is the same; the only difference is the type of building targeted. Arkansas takes a different but similar approach. There, burglary offenses apply to residential and commercial buildings that could be occupied. Breaking and entering, on the other hand, involves unoccupied buildings and structures, as well as vehicles, vaults, coin-operated machines, and safe deposit boxes. (Ark. Code §§ 5-9-201, -202; N.C. Stat. §§ 14-51, -54, -54.1, -54.2 (2022).)
Other states reserve the harsh penalties of burglary for breaking and entering a building or structure when the defendant intends to commit another crime inside, such as theft, assault, rape, or any other offense. In these states, the separate crime of breaking and entering applies when the offense is more akin to trespass of a building.
New Mexico uses this breakdown. A person commits burglary in New Mexico by breaking and entering any building or structure with the intent to commit a theft or a felony. Breaking and entering, on the other hand, still involves unlawful entry into any building or structure, but there's no requirement that the defendant intended to commit another crime once inside. (N.M. Stat. §§ 30-14-8, 30-16-3 (2022).)
In many states, breaking and entering is a felony. For those states that treat breaking and entering as a burglary offense, it will always be a felony. States that consider breaking and entering more like a trespass offense might have misdemeanor penalties, but many are still felonies.
Felony penalties for breaking and entering depend greatly on how the state defines the crime. A person who commits burglary by breaking and entering will typically face a prison sentence of 10 years or more. For home invasions, breaking and entering might carry penalties of more than 20 years' incarceration. If the state classifies breaking and entering as a less serious offense than burglary, a defendant might face lower-level felony penalties of closer to 5 years in prison.
Defendants facing breaking-and-entering charges have the same defenses as other crimes, such as "I didn't do it" and "You've got the wrong person."
Permission granted. Defendants also commonly argue that they had permission to be in the building, meaning the entry wasn't unlawful and no crime was committed.
No entry. If the defendant can successfully argue that they only "broke in" but no part of them "entered," this argument might lead to an acquittal or reduce the charges to an attempted breaking and entering.
No intent to commit a crime. When breaking and entering requires intent to commit a crime inside, defense attorneys often try to poke holes in the case by arguing the prosecutor didn't prove any criminal intent on the part of the defendant.
If you're facing burglary or breaking-and-entering charges, talk to a local criminal defense attorney who's familiar with your state's laws and the local judges and prosecutors. Your lawyer will be there to explain the law, answer your questions, and zealously defend your case.