Breaking And Entering: Civil Law Or Criminal Offense?

Breaking and entering is a crime that involves using force to enter a building or other confined structure without authorization or consent from the owner. This can include commercial or residential properties. The amount of force used can be slight and does not need to involve the destruction or breaking of property. For example, pushing open a door or raising a window can constitute forceful entry. Breaking and entering is often associated with the crime of burglary, which is generally classified as a felony. However, breaking and entering is typically classified as a misdemeanor and is similar to criminal trespassing. The penalties for breaking and entering can vary depending on the jurisdiction and the circumstances of the crime but may include imprisonment, fines, probation, and a criminal record.

Breaking and entering vs burglary

The terms "breaking and entering" and "burglary" are often used interchangeably, but they are distinct legal concepts with different implications.

Breaking and Entering

"Breaking and entering" is defined as the act of forcibly entering someone else's property without permission. This can include any act of force, from smashing a window to pushing open a door. It is also considered breaking and entering if someone enters a building through fraud, threats, or collusion.

Burglary

Burglary, on the other hand, is primarily defined as the illegal entry into a building with the intent to commit a felony or theft. It's important to note that burglary does not necessarily require the physical "breaking" of anything. The act becomes a burglary when there is unlawful entry with felonious intent, regardless of how the person gained access.

Key Differences

The primary difference between burglary and breaking and entering lies in the intent behind the action. Both involve illegal entry to a property, but burglary requires a criminal intent beyond the unlawful entry, whereas breaking and entering does not.

For example, if an individual enters another person's home at night without permission to steal valuables, this is classified as burglary. Breaking and entering, on the other hand, could be a person forcefully entering a locked warehouse, not necessarily with the intent to steal, but perhaps out of curiosity or for shelter.

Legal Consequences

Burglary and breaking and entering carry different legal penalties. Given its associated criminal intent, burglary is often treated more severely and can lead to felony charges, longer prison terms, and higher fines. Breaking and entering is usually classified as a misdemeanour, resulting in less severe penalties, unless it's associated with other criminal activities.

Burglary becomes even more serious when it involves a residential property or when an individual is present during the act, leading to enhanced charges and potentially longer prison sentences.

Misdemeanour vs felony

Breaking and entering is defined as the act of entering a building or residence through force without authorization. This can include pushing open a door or entering a building through fraud, threats, or collusion.

Now, onto misdemeanours vs felonies:

A misdemeanour is a less serious crime than a felony. Misdemeanours are typically non-violent crimes, such as shoplifting, reckless driving, simple assault, or drug possession. They are generally punishable by a jail term of less than a year, but more than 15 days, as well as smaller fines.

A felony, on the other hand, is the most serious type of crime. Examples include aggravated assault, domestic violence with bodily injury, sexual assault, and murder. Felonies are punishable by a prison sentence of more than a year, often served in a state or federal prison. They can also result in the loss of certain rights, such as the right to vote or own firearms.

The distinction between a misdemeanour and a felony is important in understanding the potential consequences of a crime. For example, in the context of breaking and entering, if there is severe property damage or someone is injured during the act, it may be considered a felony.

It's worth noting that the classification of crimes can vary between states, and prosecutors have discretion in deciding how to charge and punish an offender.

Defences against breaking and entering charges

• Mistake or Misunderstanding: If the defendant can prove that they genuinely believed they were entering their own property or a place they had permission to enter, this may serve as a defence. For example, if the defendant mistakenly entered a property that looked similar to their own or believed they had the owner's consent.
• Consent: If the defendant can demonstrate that they had obtained consent or permission from the owner or rightful occupant of the premises to be there, this could be a valid defence. However, if the defendant exceeds the scope of the consent given, this defence may not apply.
• Open Structure: If the property was left open or unlocked by the owner, the defendant may argue that there was no "breaking" involved, as no force was required to gain entry. However, this may still constitute trespassing.
• Mistaken Identity: The defendant can assert that they are not the perpetrator and provide an alibi or evidence that someone else committed the crime.
• Lack of Intent: In some jurisdictions, breaking and entering may be classified as a lesser offence, such as trespassing, if it can be proven that there was no intent to commit a crime inside the property.
• Intoxication: The defendant may argue that they were intoxicated at the time of the incident, which could rebut the presumption of intent to commit an indictable offence.
• Charter Defences: In certain countries, such as Canada, if the defendant's rights under the Charter were violated during the arrest or investigation, this could aid in their defence. For example, if the police failed to abide by the defendant's right to remain silent or right to counsel, it may result in the exclusion of certain evidence.

Breaking and entering sentences

Breaking and entering is a serious offence that can carry lengthy prison sentences and other long-lasting consequences. The crime is defined as the act of forcing or otherwise gaining unlawful passage into and entering another's building, vessel, or vehicle. The term "forcibly" is critical to the definition, but it can be misleading—force can imply anything from smashing a window to simply pushing open a door.

The amount of force used does not need to be violent or vigorous to meet the definition of breaking and entering. For example, moving a door to open it is considered a "breaking". Entering a building through an open window may also qualify as a "breaking". An "entry" occurs when any part of one's body or any instrument in their control physically enters the building.

Breaking and entering is generally considered a misdemeanour and is associated with illegal trespassing. However, it is often associated with the crime of burglary, which is generally classified as a felony. In such cases, the charge of breaking and entering will be absorbed into the charge of burglary, resulting in a felony charge.

The average jail time for breaking and entering, as a misdemeanour crime, is a maximum of one year, served in a county jail facility. Other consequences of a breaking and entering misdemeanour sentence could include court-ordered community service hours, fines (generally less than $1,000), criminal restitution or repayment in instances of property damage, and probation, either independently or paired with jail time.

Breaking and entering can become a felony crime if there are aggravating factors present. Aggravating factors are defined as any circumstance related to the crime in question that makes the crime itself worse. In terms of breaking and entering, examples of aggravating factors include severe property damage, the theft of a large amount of money and/or valuable goods, and causing serious bodily harm or injury, or death, to another person while entering.

Civil liability

Breaking and entering is a property crime that involves entering a residence or building without authorisation, using force, deceit, and/or property damage. It is a type of trespass, which becomes burglary if there is also an intent to commit a crime.

In addition to the perpetrator, other parties could potentially be held civilly liable for the breaking and entering. For example, if a security guard or front desk operator negligently allowed the perpetrator to gain access to the property, they could be held partially responsible.

The specific laws regarding civil liability for breaking and entering vary by state and the unique circumstances of each case. It is important for individuals to consult with an experienced attorney to understand their rights and legal options in such cases.

Frequently asked questions