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Burglary Defined

The Model Penal Code defines burglary as an unauthorized breaking and entry into a building or occupied structure with the intent to commit a crime inside. The three essential elements to prove burglary are: breaking and entering, a structure that is occupied, and having the intent to commit a crime once inside.

What Elements Are Required to Prove Burglary?

There are three essential elements to prove burglary. That said, many states have their own interpretation of burglary in their statutes; however, the three most common elements of burglary are listed below:

Element 1: Breaking and Entering

To meet the criteria of breaking and entering, the break in needs to be either “actual” or “constructive.” “Actual” breaking in occurs when physical force is used such as: picking a lock or breaking a door down. Even if a door has been left open, merely pushing the door constitutes breaking and entering.

“Constructive” breaking in involves methods of gaining entry that doesn’t use physical force, such as fraud or blackmail.

The final aspect that must be proved for breaking and entering is that the burglar must also enter the structure in some way whether it is sticking a hand through a window or walking through the door.

Element 2: Building or Occupied Structure

The second element of a burglary that must be proven is showing that the intrusion occurred into a residence or some sort of space that can be occupied. Historically, this definition only included a residence. Today, it has been changed to any structure that has the capability of housing either people or animals. This can also include stores or office buildings; however, it usually does not include abandoned buildings. Merely breaking into a field with a fence is generally not sufficient for a burglary charge. If there were a shed inside the field, then that would meet the requirements of the second element of burglary.

Element 3: Intent to Commit a Crime in the Building

To satisfy the third element of burglary, the individual has to have the intent to commit a crime inside the building. Typically, theft is the crime that is being considered when making a burglary charge. The type of intent is measured in degrees, and the more severe burglary charges are based on the individual having the intent to commit a crime before entering the building. If the intent occurred after entering the building, then the degree of the burglary charge could potentially be reduced.

How Many Different Degrees of Burglary Are There?

There are four different degrees of burglary that can vary depending on the state. The main elements of the four degrees of burglary are listed below:

First Degree Burglary

First-degree burglary occurs when there is some form of aggravating factor such as the burglar being armed or injuring the victim in some way. The definition of first-degree burglary can depend on the state. The original common law definition of burglary has burglary occurring only at night. Even today, some states have statutes that make the burglary offense more severe if it occurred at night. Other states base a first-degree burglary charge on the burglar’s initial intent when deciding to commit the crime, meaning whether it happened before or after entering the structure.

Second Degree Burglary

Second-degree burglary has similar elements to first-degree burglary; however, these definitions do tend to vary by state. For example, in some states, a burglar could be charged for second-degree burglary if they broke into a structure that was not a primary dwelling. The main distinction between second-degree burglary and third-degree burglary is whether there is the presence of an aggravated weapon.

Third Degree Burglary

Third-degree burglary can be a misdemeanor in some states. To satisfy a third-degree burglary charge, a person has to unlawfully enter a structure and intend to commit a crime while inside. Third-degree burglary does not occur when a weapon is involved. Third-degree burglary usually means that all three required elements of a burglary charge have been met. Sometimes if a prosecutor cannot prove the burglar’s intent, they will reduce the third-degree burglary charge to an unlawful entry charge in some states.

Fourth Degree Burglary

Fourth-degree burglary is the least severe of all the burglary charges in that it usually includes a defendant with the intent to commit burglary but has not done so as of yet. An example of this would be when a person is found with a crowbar outside a home, ready to enter the structure, and potentially commit a crime within it. Fourth-degree burglary is typically a misdemeanor charge in many states.

What Are the Penalties for Burglary?

Penalties for burglary can vary greatly depending on the state that the burglary was committed in, and the severity of the offense. Common penalties for burglary are probation, fines or imprisonment.


A judge can impose a sentence of probation for the crime of burglary. This will usually consist of a court order requiring the individual to report to a probation officer and have periodic drug testing. If these conditions are violated, then the individual would go to jail or prison.


Fines charged for burglary offenses can vary by state. Usually, the more severe fines will be imposed if there was substantial damage to the victim’s property. However, some states do charge hefty fines for the act of burglary itself. These fines are typically determined by the different degrees of burglary and what their specific thresholds are in each state’s statutes. In some states, a fine over $750,000 can be imposed depending on the severity of the offense.


Imprisonment as a penalty for burglary will also depend on the state’s individual statutes. While the burglary imprisonment sentences vary greatly, they can be up to 25 years in some states. The amount of time in prison will be determined by the severity of the burglary committed, the state’s corresponding statutes, and what is decided in court.

Burglary Glossary Definition

Burglary is the unlawful entry of a structure with the intent to commit a felony or theft. To successfully prove a burglary has taken place, the use of force to gain entry does not necessarily need to be shown. Burglary charges can vary in severity depending on the specific statutes of the state where the burglary occurs. In 2010, there were approximately 2,159,878 burglaries, which was a decrease of 2% from the previous year’s data.