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Fairfax Burglary Lawyer Explains Breaking and Entering Law in Virginia under Va. Code 18.2-89 and Possible Defenses

Introduction to Breaking and Entering in Virginia

Breaking and entering is a serious offense in Virginia, as it often involves unlawful entry into someone's property with the intent to commit a crime. Understanding the legal nuances and potential defenses for these charges can be crucial in protecting your rights and freedom. In this article, we will discuss the basics of breaking and entering law in Virginia under Va. Code 18.2-89 and some of the possible defenses that a skilled Fairfax burglary lawyer can employ.

Understanding Va. Code 18.2-89

Elements of Breaking and Entering

Under Virginia law, breaking and entering involves the following elements:

  1. Entering a building or structure, either by force or by stealth;
  2. Without the consent of the owner or legal occupant; and
  3. With the intent to commit a crime, such as larceny, assault, or any felony. The prosecution must prove all these elements beyond a reasonable doubt for a conviction to occur.

There are other types of burglary that can change based on the time of day a building was entered, whether the building was a dwelling house (home) or a commercial business, what the intended crime upon entering was, and other factors. As the elements change, so does the punishment. Generally, the harshest punishment is for entering a home in the nighttime.

Penalties for Breaking and Entering

Breaking and entering can result in severe penalties, which vary depending on the specific circumstances. Entering a home in the nighttime is a Class 3 Felony, punishable by up to 20 years in prison. If a person does so while wielding a deadly weapon, the crime becomes a Class 2 Felony, punishable by 20 years to life imprisonment.

Possible Defenses for Breaking and Entering

A knowledgeable Fairfax burglary lawyer can help build a strong defense by analyzing the facts and circumstances of your case. Some of the most common defenses include:

Lack of Intent

The prosecution must prove that you had the intent to commit a crime when you entered the property. If there is no evidence of criminal intent, or if it can be shown that you entered the premises for a lawful purpose, this defense may be successful in reducing or dismissing the charges.

Mistaken Identity

Mistaken identity is a defense that arises when you are wrongly accused of a crime due to mistaken identification by witnesses or law enforcement. A skilled lawyer can challenge the reliability of eyewitness testimony and present evidence that shows you were not the person responsible for the crime.


If the property owner or legal occupant gave you permission to enter the premises, you cannot be convicted of breaking and entering. Your attorney can help you gather evidence of consent, such as text messages, emails, or witness testimony, to prove that you had lawful access to the property.


An alibi defense involves proving that you were somewhere else at the time the alleged crime took place. This can involve presenting evidence such as receipts, surveillance footage, or witness testimony to show that you could not have committed the crime.

Insufficient Evidence

The prosecution must prove every element of the crime beyond a reasonable doubt. If there is insufficient evidence to meet this burden of proof, your charges may be reduced or dismissed. A skilled Fairfax burglary lawyer can challenge the prosecution's evidence and argue that it does not meet the required standard.

Importance of Hiring a Fairfax Burglary Lawyer

Expertise in Virginia Law

A Fairfax burglary lawyer has the necessary expertise in Virginia law and can provide you with the best possible legal representation. They understand the intricacies of breaking and entering laws and are well-versed in the local court system.

Building a Strong Defense

A skilled lawyer will thoroughly analyze your case, gather evidence, and develop a strong defense strategy tailored to your specific circumstances. This can involve challenging the prosecution's evidence, presenting alternative theories, and calling expert witnesses to testify on your behalf.

Representing Your Best Interests

Having an experienced Fairfax burglary lawyer on your side ensures that your best interests are represented throughout the legal process. They can negotiate with the prosecution for a plea bargain, argue for reduced charges, or fight for your acquittal in court.


Breaking and entering charges in Virginia under Va. Code 18.2-89 can have serious consequences, making it crucial to understand the law and possible defenses. Hiring a knowledgeable Fairfax burglary lawyer is essential in protecting your rights and achieving the best possible outcome in your case.


  1. What is the difference between burglary and breaking and entering in Virginia?

These terms are used interchangeably in Virginia.

  1. Can I be charged with breaking and entering if I didn't actually break anything?

Yes, you can still be charged with breaking and entering even if you didn't physically break anything. The term "breaking" can include opening an unlocked door or window or using deception to gain entry.

  1. What if I entered a property by mistake, thinking it was my own?

In this case, you may have a valid defense, as the prosecution must prove that you had criminal intent when entering the property. If you can demonstrate that you honestly believed the property was your own, this could help in dismissing the charges.

  1. Can a juvenile be charged with breaking and entering in Virginia?

Yes, juveniles can be charged with breaking and entering in Virginia. However, the legal process and potential penalties for juveniles are different from those for adults. A skilled attorney can help navigate the juvenile justice system and work towards the best possible outcome.

  1. How long does a breaking and entering conviction stay on my criminal record in Virginia?

A breaking and entering conviction will remain on your criminal record in Virginia indefinitely.

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