Burglary Under the Va. Code: Statutes, Penalties, and Defenses

Burglary under the Virginia Code is always a felony, but it isn’t a single offense. Sections 18.2-89 through 18.2-94 divide burglary into five distinct crimes, and the charge you face depends on what kind of building was entered, whether the entry involved a physical breaking, the time of day, and — most importantly — what the person intended to do once inside. Penalties run from one year in prison for the least serious form to a mandatory minimum of twenty years and a maximum of life when a deadly weapon is involved.

Common Law Burglary: Section 18.2-89

Section 18.2-89 preserves the traditional common law offense. To convict, the prosecution must prove the defendant broke and entered the dwelling house of another, at nighttime, with the intent to commit a felony or larceny inside.¹

Every element has a specific meaning. “Breaking” requires some use of force to create an opening, though it can be minimal — turning a doorknob or pushing up a window is enough. Walking through an already-open door is not. A “dwelling house” is a building where people regularly sleep, whether or not anyone was home. “Nighttime” traditionally means the period between sunset and sunrise when there is not enough natural light to recognize a face. Daytime entries fall outside § 18.2-89 and have to be charged under the statutory burglary sections instead.

Common law burglary is a Class 3 felony. If the defendant was armed with a deadly weapon at the time of entry, the offense becomes a Class 2 felony.¹

Statutory Burglary with Violent Intent: Section 18.2-90

Section 18.2-90 reaches conduct the common law definition misses. It applies when a person enters with the intent to commit murder, rape, robbery, or arson.²

Where common law burglary requires breaking and nighttime, § 18.2-90 covers entry without breaking at night, breaking and entering during the day, or entering and concealing yourself to commit the crime later. It also expands the list of covered structures well beyond houses. Any building permanently attached to land, any ship or river craft, any railroad car, and any car, truck, or trailer used as a dwelling all qualify.²

A conviction under § 18.2-90 is a Class 3 felony, the same class as common law burglary.

Statutory Burglary for Larceny or Other Felonies: Section 18.2-91

Section 18.2-91 fills the gap between § 18.2-90 and the misdemeanor-intent section. It applies when a person does any of the entry acts in § 18.2-90 with intent to commit larceny or any felony other than murder, rape, robbery, or arson, and when a person does any of the entry acts in § 18.2-89 or § 18.2-90 with intent to commit assault and battery.³

This is the section that catches the most common burglary scenario: someone entering a home, business, or vehicle to steal. It covers the same broad range of structures as § 18.2-90 and applies day or night.

Section 18.2-91 has its own sentencing structure rather than a standard felony class. A conviction carries one to twenty years in a state correctional facility, or, at the discretion of the judge or jury, up to twelve months in jail or a fine of up to $2,500, or both. If the defendant was armed with a deadly weapon at the time of entry, the offense becomes a Class 2 felony.³

Breaking and Entering with Misdemeanor Intent: Section 18.2-92

Section 18.2-92 covers a narrower situation: breaking and entering an occupied dwelling with intent to commit a misdemeanor. Two misdemeanors are excluded. Assault and battery intent is handled under § 18.2-91, and trespass is prosecuted under its own statutes.⁴

Two features make this section distinct from the others. The dwelling has to be occupied at the moment of entry — an empty house does not qualify even if misdemeanor intent is proven. And a physical breaking is required, so entering through an open door or hiding inside will not trigger the charge.

A conviction under § 18.2-92 is a Class 6 felony. Carrying a deadly weapon during the entry elevates it to a Class 2 felony.⁴

Possession of Burglary Tools: Section 18.2-94

You do not have to actually break into a building to face burglary-related charges in Virginia. Under § 18.2-94, possessing tools with the intent to commit burglary, robbery, or larceny is itself a Class 5 felony.⁵

The statute treats possession of such tools by anyone other than a licensed dealer as prima facie evidence of criminal intent. That is not the same as automatic conviction, but it shifts the practical burden onto the defendant to explain the possession. A licensed locksmith on a service call is in a very different position than someone found with lock picks and pry bars near a residential neighborhood in the middle of the night.⁵

Penalties by Offense

Virginia’s felony sentencing ranges are set in § 18.2-10, and they determine the actual prison time and fines tied to each burglary classification.⁶

Class 2 felony (any burglary committed while armed with a deadly weapon): 20 years to life in prison, plus a fine of up to $100,000.
Class 3 felony (§ 18.2-89 common law burglary and § 18.2-90 violent-intent statutory burglary): 5 to 20 years in prison and a fine of up to $100,000.
Section 18.2-91 (larceny, other felony, or assault and battery intent): 1 to 20 years in state prison, or, at the court’s discretion, up to 12 months in jail or a fine of up to $2,500, or both.
Class 5 felony (§ 18.2-94 possession of burglary tools): 1 to 10 years in prison, or, at the court’s discretion, up to 12 months in jail or a fine of up to $2,500, or both.
Class 6 felony (§ 18.2-92 misdemeanor-intent burglary): 1 to 5 years in prison, or, at the court’s discretion, up to 12 months in jail or a fine of up to $2,500, or both.

The jail-or-prison option built into the Class 5, Class 6, and § 18.2-91 penalties gives judges and juries real flexibility. A first-time offender with no weapon may receive a jail sentence measured in months. A defendant with a record of property crimes is far more likely to be sentenced within the state prison range.

Burglary Compared to Criminal Trespass

Trespass is entering or remaining on property without permission. Burglary is that same unauthorized entry plus the intent to commit a crime once inside. The intent element is what turns a misdemeanor trespass into a felony burglary charge.

That line matters in practice. If prosecutors cannot prove the defendant planned to commit a specific crime inside the structure, a burglary conviction cannot stand, though a trespass charge may still apply. Courts look at behavior before and during the entry, statements the defendant made, and whether the person was carrying tools or other items suggesting a criminal purpose.

Common Defenses

Every Virginia burglary statute requires proof of specific intent at the time of entry. Most viable defenses start there.

Lack of Intent

A defendant who entered without planning to commit a crime inside has a defense to the burglary charge regardless of whether the entry was authorized. Someone who wandered into the wrong apartment while intoxicated, or entered a building they mistakenly thought was abandoned, may lack the required intent. Trespass charges can still follow, but the felony burglary charge fails.

Consent or Authorized Entry

Burglary requires unlawful entry. If the defendant had permission to enter, or reasonably believed they did, the unauthorized-entry element collapses. Text messages, prior arrangements, or a history of welcome visits can support this defense. Complications arise in situations like a customer who had permission to be in a store during business hours but stayed after closing, or a former resident who still held a key.

Claim of Right

When the underlying intended crime is theft, a defendant who genuinely believed the property belonged to them may have a defense. A person who breaks into a storage unit to retrieve items they honestly believe are theirs has not formed the intent to commit larceny, even if they turn out to be wrong about ownership. Receipts, written agreements, or other documentation can support the claim.

Restitution and Other Consequences

The formal sentence is only part of what a burglary conviction produces.

Under § 19.2-305.1, no one convicted of a Title 18.2 offense that results in property damage or loss can receive probation or a suspended sentence without making at least partial restitution, performing community service, or both. Restitution covers the cost of repairing or replacing stolen or damaged property, medical expenses, and, where applicable, funeral or burial costs. Courts typically require the defendant to submit a feasible repayment plan.⁷

Because every form of Virginia burglary is a felony, any conviction under §§ 18.2-89 through 18.2-94 also triggers the federal firearms ban in 18 U.S.C. § 922(g)(1), which prohibits anyone convicted of a felony from possessing guns.⁸ A felony burglary conviction shows up on standard background checks, and many employers and landlords treat property crimes as disqualifying. Virginia felony convictions also result in the loss of voting rights, which can be restored through a petition process.

1
Virginia Code Commission. Virginia Code 18.2-89 – Burglary; How Punished
2
Virginia Code Commission. Virginia Code 18.2-90 – Entering Dwelling House, Etc., With Intent to Commit Murder, Rape, Robbery or Arson; Penalty
3
Virginia Code Commission. Virginia Code 18.2-91 – Entering Dwelling House, Etc., With Intent to Commit Larceny, Assault and Battery or Other Felony
4
Virginia Code Commission. Virginia Code 18.2-92 – Breaking and Entering Dwelling House With Intent to Commit Other Misdemeanor
5
Virginia Code Commission. Virginia Code Title 18.2 Chapter 5 Article 2 – Burglary and Related Offenses
6
Virginia Code Commission. Virginia Code 18.2-10 – Punishment for Conviction of Felony; Penalty
7
Virginia Code Commission. Virginia Code 19.2-305.1 – Restitution for Property Damage or Loss; Community Service
8
Office of the Law Revision Counsel. 18 U.S. Code 922 – Unlawful Acts