Breaking and entering in Virginia is governed by Code §§ 18.2-89 through 18.2-94, which treat the offense as a felony in every form. Penalties run from one year in jail at the low end to life in prison at the high end, and the exact charge depends on four variables: the type of structure entered, whether the entry happened at night or during the day, whether the person was armed with a deadly weapon, and what crime they intended to commit once inside. The same physical act of forcing open a door can produce a Class 6 felony or a Class 2 felony depending on those facts.
What Counts as Breaking and Entering
A “breaking” does not require force in the dramatic sense. Pushing open a closed door, lifting a window latch, or any use of force to create an opening is enough. Virginia courts also recognize constructive breaking, where entry is gained through threats, fraud, or conspiracy rather than physical force. Someone who tricks a homeowner into opening the door has still committed a break under the statute.
“Entering” is satisfied the moment any part of the person’s body crosses into the structure. A hand reaching through an open window counts. So does inserting a tool into a building to retrieve something inside. The prosecution has to prove both elements, the breaking and the entry, to sustain a charge.
The Virginia Burglary Statutes
Virginia splits burglary across several statutes, each aimed at a different combination of structure, timing, and intended crime.
Section 18.2-89: Common-Law Burglary
Breaking and entering a dwelling at night with intent to commit a felony or any larceny inside is a Class 3 felony. If the person was armed with a deadly weapon during the entry, the charge becomes a Class 2 felony.1Virginia Code Commission. Virginia Code 18.2-89 – Burglary; How Punished
Section 18.2-90: Entry With Intent to Commit Murder, Rape, Robbery, or Arson
Section 18.2-90 reaches further than the common-law rule. It covers entering a dwelling at night without breaking, breaking and entering a dwelling during the day, and breaking and entering any building permanently attached to real property, any ship or river craft, any railroad car, or any automobile or trailer used as a dwelling. The intended crime must be murder, rape, robbery, or arson. The offense is a Class 3 felony, elevated to Class 2 if the person was armed.2Virginia Code Commission. Virginia Code 18.2-90 – Entering Dwelling House, Etc., With Intent to Commit Murder, Rape, Robbery or Arson; Penalty
Section 18.2-91: Entry With Intent to Commit Larceny, Assault and Battery, or Other Felony
Section 18.2-91 covers the same categories of structures and entries described in § 18.2-90 but applies when the intended crime is larceny, any felony other than murder, rape, robbery, or arson, or assault and battery. The penalty is one to 20 years in a state correctional facility. In the alternative, a judge or jury can impose up to 12 months in jail, a fine up to $2,500, or both. Being armed with a deadly weapon elevates the charge to a Class 2 felony.3Virginia Code Commission. Virginia Code 18.2-91 – Entering Dwelling House, Etc., With Intent to Commit Larceny, Assault and Battery or Other Felony
Section 18.2-92: Breaking and Entering With Intent to Commit a Misdemeanor
Breaking and entering an occupied dwelling with intent to commit a misdemeanor other than assault and battery or trespass is a Class 6 felony. This applies both during the day and at night. An armed defendant faces a Class 2 felony instead.4Virginia Code Commission. Virginia Code – Article 2. Burglary and Related Offenses
Section 18.2-93: Entering a Bank While Armed
Entering a bank while armed with a deadly weapon, with intent to steal money, bonds, or other financial instruments, is a Class 2 felony. The time of day does not matter.5Virginia Code Commission. Virginia Code 18.2-93 – Entering Bank, Armed, With Intent to Commit Larceny
Why Intent Drives the Charge
Every burglary charge in Virginia requires proof that the person intended to commit a specific crime at the moment of entry. The entry alone is not enough. Prosecutors have to show the criminal objective existed before or at the time of entering. Without that proof, the charge may drop to trespass or another lesser offense.
Because intent is a mental state, it almost always has to be proven through circumstantial evidence: what the person brought with them, what they did once inside, statements they made, and the overall circumstances. Someone found inside a home at 3 a.m. with a pillowcase full of electronics gives prosecutors a much easier argument than someone found in a neighbor’s unlocked garage.
The intended crime also decides which statute applies, and the gap between statutes is large. Entering with intent to commit robbery triggers § 18.2-90 and its Class 3 range. Entering with intent to commit larceny falls under § 18.2-91, which allows a sentence as low as 12 months in jail. The physical act can be identical; the planned crime changes everything.
Penalties by Felony Class
Virginia’s felony classification system sets the sentencing range for each offense:
- Class 2 felony (§§ 18.2-89, 90, 91, or 92 when armed; § 18.2-93 by default): imprisonment for life or any term of 20 years or more, plus a fine up to $100,000.6Virginia Code Commission. Virginia Code 18.2-10 – Punishment for Conviction of Felony; Penalty
- Class 3 felony (§§ 18.2-89 and 18.2-90): 5 to 20 years in prison and a fine up to $100,000.6Virginia Code Commission. Virginia Code 18.2-10 – Punishment for Conviction of Felony; Penalty
- Section 18.2-91 penalty: 1 to 20 years in a state correctional facility, or up to 12 months in jail and a fine up to $2,500, or both.3Virginia Code Commission. Virginia Code 18.2-91 – Entering Dwelling House, Etc., With Intent to Commit Larceny, Assault and Battery or Other Felony
- Class 6 felony (§ 18.2-92): 1 to 5 years in prison, or up to 12 months in jail and a fine up to $2,500, or both.6Virginia Code Commission. Virginia Code 18.2-10 – Punishment for Conviction of Felony; Penalty
The armed-with-a-deadly-weapon upgrade cuts across every burglary statute. One fact can turn a case with a potential one-year jail sentence into one carrying 20 years to life. It is the most consequential sentencing variable in the entire framework.
Possession of Burglary Tools
Section 18.2-94 makes it a Class 5 felony to possess tools with intent to commit burglary, robbery, or larceny. A Class 5 felony carries one to 10 years in prison, or at the discretion of the judge or jury, up to 12 months in jail and a fine up to $2,500.7Virginia Code Commission. Virginia Code 18.2-94 – Possession of Burglarious Tools, Etc.6Virginia Code Commission. Virginia Code 18.2-10 – Punishment for Conviction of Felony; Penalty
The statute carries a built-in presumption against the defendant: possessing burglary tools, if you are not a licensed dealer, creates a presumption that you intended to use them for a crime. The presumption is rebuttable, but the prosecution starts with an advantage. Courts assess intent by looking at where the person was found, the time of day, whether they had gloves or masks, and whether they had prior burglary convictions. Prior convictions carry particular weight because courts have allowed them in as evidence of intent to commit another break-in.7Virginia Code Commission. Virginia Code 18.2-94 – Possession of Burglarious Tools, Etc.
How This Differs From Trespassing
Trespassing and burglary get confused, but the gap between them is large. Under Virginia Code § 18.2-119, criminal trespass means going onto or remaining on someone’s property after being told not to, either verbally, in writing, by posted signs, or by a court order. Trespass is a Class 1 misdemeanor, punishable by up to 12 months in jail and a fine up to $2,500.8Virginia Code Commission. Virginia Code 18.2-119 – Trespass After Having Been Forbidden to Do So
Burglary requires two additional elements: a breaking (or unauthorized entry into a structure) and a specific intent to commit a crime inside. Someone who wanders into an unlocked shed after being told to stay off the property has committed trespass. Someone who forces open that shed intending to steal what’s inside has committed burglary. The intent element is what turns a misdemeanor into a felony carrying years or decades in prison.
No Statute of Limitations for Felony Burglary
Virginia sets no statute of limitations for felonies. Prosecutors can file burglary charges years or decades after the alleged offense. An old incident does not go away because time has passed.
Common Defenses
Since intent is the linchpin of every burglary charge, the strongest defenses tend to attack that element. If the prosecution cannot prove you intended to commit a crime inside, the burglary charge fails even when the entry itself is undisputed.
- No criminal intent at the time of entry. If you entered for a non-criminal reason and only formed criminal intent after getting inside, the entry itself was not a burglary. Someone who walks into an unlocked office to escape bad weather and then decides on impulse to take a laptop has a different legal exposure than someone who went in planning to steal. The intent must exist at the moment of entry.
- Consent or claim of right. Permission from the property owner means no unauthorized entry. A genuine belief that you had a legal right to be in the structure, or to take the property, can also defeat the intent element.
- Mistaken identity. Burglaries often happen at night, in poor visibility, and with unreliable witnesses. Identification evidence, alibi testimony, and forensic evidence are all open to challenge.
The strength of any defense turns on the specific facts. The time of entry, tools carried, and conduct inside all feed into whether a jury finds the intent element was proven.
Collateral Consequences of a Conviction
The sentence is rarely the end of the matter. A felony conviction triggers civil disabilities that outlast the prison term.
Loss of Civil Rights
A felony conviction in Virginia automatically strips the right to vote, serve on a jury, run for public office, and become a notary public. Restoration is up to the Governor, and it is not automatic; it requires an application through the Secretary of the Commonwealth’s office. Firearm rights are handled separately.9Restore Virginia. Restoration of Rights Process
Loss of Firearm Rights
Federal law under 18 U.S.C. § 922(g)(1) prohibits anyone convicted of a crime punishable by more than one year of imprisonment from possessing, transporting, or receiving a firearm or ammunition.10Office of the Law Revision Counsel. 18 USC 922 – Unlawful Acts Every Virginia burglary offense carries a potential sentence longer than one year, so every burglary conviction triggers that federal ban. Restoring firearm rights in Virginia requires civil rights restoration first, then a petition to the circuit court; a full pardon without firearm restrictions is the other path, and neither is guaranteed.11Virginia State Police. Restoration of Firearm Rights
Restitution to Victims
Virginia courts can order restitution for property crimes. Under § 19.2-305.2, the court may require the defendant to return the stolen or damaged property, or when return is impractical, pay an amount equal to the greater of the property’s value at the time of the offense or at the time of sentencing.12Virginia Code Commission. Virginia Code 19.2-305.2 – Amount of Restitution; Enforcement Restitution sits on top of any fines and prison time ordered.