§ 18.2-91: Virginia Statutory Burglary, Penalties and Defenses

Virginia Code § 18.2-91 is the statutory burglary law that applies when someone enters a dwelling or other covered structure without authorization and with intent to commit larceny, assault and battery, or any felony other than murder, rape, robbery, or arson. A conviction carries one to twenty years in prison, though the judge or jury may instead impose up to twelve months in jail and a fine of up to $2,500. If the person was armed with a deadly weapon at the time of entry, the offense becomes a Class 2 felony punishable by twenty years to life.¹

What the Statute Makes a Crime

Section 18.2-91 is built on two elements that must both be present: an unauthorized entry of a covered structure by a method the statute recognizes, and a specific criminal intent held at the moment of entry. The statute borrows its entry methods and list of covered structures from § 18.2-90 (and, for assault-and-battery intent, also from § 18.2-89).¹

For a dwelling house and any adjoining occupied outbuilding, the entry can be charged if it happened without breaking during the nighttime, or with breaking during the daytime. A nighttime entry into a home does not require any forced entry at all; walking through an unlocked door at night can satisfy the entry element. In the daytime, prosecutors must show both a breaking and an entering.²

For non-dwelling structures, the rules are broader. Nighttime entry without breaking qualifies, and so does breaking and entering at any time of day. The statute also treats entering and then concealing oneself inside a structure as a qualifying act, so a person who walks in during business hours and hides until after closing can face the same charge if the required intent was present when they concealed themselves.²

The covered structures include dwelling houses and adjoining occupied outbuildings, buildings permanently attached to real property (commercial buildings, warehouses, churches, and the like), ships and other watercraft, railroad cars, and vehicles actually used as a dwelling. That last category is narrow. An ordinary car in a driveway is not covered simply because it’s a vehicle; the statute reaches a trailer, RV, or similar vehicle only when someone lives in it.²

The Intent Element

The entry alone is not enough. Prosecutors must prove the person acted with one of three specific intents at the moment they entered:¹

Intent to commit larceny. This is the most commonly charged version of the offense.
Intent to commit assault and battery against someone inside.
Intent to commit any other felony, except for murder, rape, robbery, or the arson offenses that are handled under § 18.2-90.

There is a drafting wrinkle worth knowing. For larceny and other-felony intent, § 18.2-91 incorporates only the entry methods from § 18.2-90. For assault-and-battery intent, it also incorporates the acts covered by § 18.2-89, so a nighttime break-in of a dwelling with intent to assault can be charged under either statute.¹

The intended crime does not have to be completed. What matters is the defendant’s purpose at the instant of entry, and prosecutors usually prove it through circumstantial evidence: tools like pry bars or bolt cutters at the scene, surveillance showing the building being watched beforehand, the time of day, and possession of stolen items afterward.

Base Penalty

Section 18.2-91 does not fit neatly into Virginia’s standard felony classes. The statute sets its own range: confinement in a state correctional facility for not less than one year and not more than twenty years.¹

The judge or jury also has discretion to step down to an alternative sentence of up to twelve months in jail, a fine of up to $2,500, or both. The same statute can therefore produce anything from a short jail term to a two-decade prison sentence depending on the facts: whether the building was occupied, the defendant’s record, and the seriousness of the intended crime all push the outcome up or down. The structure mirrors the sentencing flexibility Virginia gives for Class 5 and Class 6 felonies.³

Enhanced Penalty if Armed With a Deadly Weapon

If the person was armed with a deadly weapon at the time of entry, § 18.2-91 escalates to a Class 2 felony. That carries twenty years to life in prison, and a possible fine of up to $100,000.¹³

A deadly weapon in Virginia is any object, other than a body part or stationary object, that in the manner of its actual, attempted, or threatened use could cause serious bodily injury or death.⁴ The weapon does not have to be used, drawn, or shown. Having a knife in a pocket or a firearm in a waistband during the entry is enough to trigger the enhancement.

Where § 18.2-91 Sits Among Virginia’s Burglary Statutes

Virginia has three burglary statutes, and the one that applies turns on the type of structure, the time of day, how the entry occurred, and the seriousness of the intended crime.

Section 18.2-89 is common law burglary: breaking and entering a dwelling at nighttime with intent to commit any felony or larceny. It is a Class 3 felony, or Class 2 if the person was armed.⁵
Section 18.2-90 reaches a broader set of entry methods and structures but is limited to the most serious intended crimes: murder, rape, robbery, and certain arson offenses. Also a Class 3 felony, or Class 2 if armed.²
Section 18.2-91 uses the same entry methods and structures as § 18.2-90 but covers the lesser intended crimes left over: larceny, assault and battery, and other felonies.¹

In practice, § 18.2-91 is the catch-all for unauthorized entries driven by criminal intent that does not rise to the level of the most violent offenses. The classic example is breaking into a building to steal.

Statutory Burglary vs. Criminal Trespass

Not every unauthorized entry is burglary. Criminal trespass under § 18.2-119 applies when a person goes onto or stays on another’s property after being told not to, in person, in writing, or by posted signs. It is a Class 1 misdemeanor, with up to twelve months in jail and a fine of up to $2,500.⁶

Statutory burglary under § 18.2-91 requires that same unauthorized presence plus a specific criminal intent at the moment of entry. If prosecutors cannot prove the defendant meant to steal, assault someone, or commit another felony when they crossed the threshold, the case may collapse to trespass.

Common Defenses

Because the intent element has to be met at a precise point in time, most defenses to § 18.2-91 attack it directly.

No criminal intent at entry. Someone who walked into an unlocked building thinking it was public, or into a friend’s apartment believing they had standing permission, lacks the mental state the statute requires.
Consent. If the owner or someone authorized gave permission, the entry was not unauthorized. Even a reasonable but mistaken belief that permission existed can undercut the case.
Insufficient evidence of intent. When a person is found inside without stolen property, burglary tools, or other indicators of a plan, prosecutors can struggle to prove intent beyond a reasonable doubt.
Intent formed after entry. If the defendant entered lawfully or without criminal purpose and only decided to steal once inside, the timing does not satisfy § 18.2-91. The intent must exist at the moment of entry.

Collateral Consequences

A § 18.2-91 conviction is a felony, and that status carries consequences beyond the sentence itself. Federal law bars anyone convicted of a crime punishable by more than one year of imprisonment from possessing firearms or ammunition.⁷ Because § 18.2-91 carries up to twenty years, a conviction triggers that lifetime federal ban. Virginia lets convicted felons petition a circuit court to restore firearm rights, but only after the Governor has first restored their political rights.⁸

Voting rights are also lost on a felony conviction in Virginia and require gubernatorial restoration. The conviction will show on background checks for employment, housing, and professional licensing for the indefinite future.

1
Virginia Code Commission. Virginia Code 18.2-91 – Entering Dwelling House, Etc., With Intent to Commit Larceny, Assault and Battery or Other Felony
2
Virginia Code Commission. Virginia Code 18.2-90 – Entering Dwelling House, Etc., With Intent to Commit Murder, Rape, Robbery or Arson
3
Virginia Code Commission. Virginia Code 18.2-10 – Punishment for Conviction of Felony; Penalty
4
Virginia Code Commission. Virginia Code 19.2-83.3 – Definitions
5
Virginia Code Commission. Virginia Code – Article 2, Burglary and Related Offenses
6
Virginia Code Commission. Virginia Code 18.2-119 – Trespass After Having Been Forbidden to Do So
7
Office of the Law Revision Counsel. 18 USC 922 – Unlawful Acts
8
Virginia State Police. Restoration of Firearm Rights