Breaking and Entering
Criminal Criminal Felony Criminal Misdemeanor
Summary: Michigan's breaking and entering statutes including definitions, penalties, defenses to breaking and entering charges, difference between home invasion and breaking and entering and difference between breaking and entering and burglary.
In
Michigan, if you break and enter into a building or structure other than a
dwelling with the intent to commit a felony or larceny, you are guilty of the
crime of breaking and entering or more commonly refereed to as burglary. It is
a felony punishable by up to 10 years in prison. Essentially, the prosecutor
must prove that the defendant did three things: 1) broke into a building, 2)
entered the building, and 3) at the time of breaking and entering he intended
to commit a felony or larceny. This is a
very serious offense that requires experienced representation from a Michigan
criminal defense attorney. Let's look at the elements in more detail.
Building
Defined
For
purposes of the breaking and entering statute (MCL 750.110), building is
defined as a:
·
tent
·
hotel
·
office
·
store
·
shop
·
warehouse
·
barn
·
granary
·
factory
·
boat
·
ship
·
railroad car
·
any other building or structure
Breaking
The
building or structure does not have to be broken. Any amount of force used,
such as opening a door, raising a window, or taking off a screen, however
slight, constitutes breaking. All that is required is that some force is used
to gain entry, even if the door or window is already partially opened. However,
walking through an open door without applying any force to move the door is not
breaking.
Entering
Some
part of the body is required to have entered inside the building or structure.
The entire body is not required to be inside. A partial part of the body is
sufficient.
Intent
to Commit a Crime or Felony
In
order to prove this element, the prosecutor must allege and prove a particular
felony. Breaking and entering alone is not sufficient to presume that the
accused had the intent to steal simply because of breaking and entering. There
must be additional circumstances that would reasonably lead to the conclusion
that the accused had the intent to steal or commit a felony of some kind. This
may be reasonably inferred from the nature, time, and place of the defendant's
actions before and during the breaking and entering. Intent may be reasonably
inferred from the totality of the circumstances disclosed by witness testimony.
Breaking
and Entering of an Occupied Dwelling
This
is an added element in that the prosecutor must prove that the building or structure
was an “occupied dwelling.” That means it had to be a place to live at the time
of the breaking and entering. It doesn't matter if they were actually home at
the time it occurred.
Aggravating
Factor-- Use of a Firearm
If
the accused had a firearm during the commission of the breaking and entering
(whether it was actually used or not) heightens the maximum penalty from 10
years to 20 years in prison and fines up to $5,000.
Defenses
Intoxication--
Since breaking and
entering is a specific intent crime, intoxication can be a defense. Simply
because the accused is drunk or under the influence does not automatically get
him off the hook. The degree and level of intoxication will determine that. His
blood alcohol content (BAC) or level along with an evaluation from the Forensic
Center will determine that.
Lack
of Intent-- If the
prosecution cannot prove, either directly or indirectly by circumstantial
evidence that the accused had the intent to commit a theft or a felony, the
accused would be entitled to a not guilty verdict or dismissal if no evidence
was presented or could be inferred at the preliminary exam. There are plenty of
examples where mentally incapacitated persons have wandered into someone's home
or building with no intent of committing any crimes or homeless persons have
been known to enter an abandoned building, tool shed, or home for warmth or
protection of the elements. In any event, these examples would not satisfy the
intent element.
Entry
with Consent-- If the
accused entered the building or structure with consent of the owner, he cannot
be found guilty of the offense.
Lesser
Charges
Entry
without Breaking-- This
has all the same elements of B&E except in this case the entry occurs
without breaking, meaning no force of any kind was used to gain entry. For
example, the accused walked through an already open door. This is a felony
punishable by up to five years in prison.
Entry
Without Owner's Permission-- Commonly
referred to as trespassing, this is entering a building without having
authority or permission of the owner or the owner's agent. This is commonly
used as a ;plea deal in cases where the defendant has no prior criminal
history, the case is weak, or the prosecutor cannot prove the “intent to commit
a felony or theft” element. It is a one-year misdemeanor.
As
you can see, breaking and entering is a very serious crime which can have a
devastating impact on your life and future. Sentencing options may be available
to you which could keep any convictions off your public record or there could
be legal and factual issues with your case that could be used to get a
reduction in the charges or a dismissal. Contact Austin Legal Services, PLC
today at (517) 614-1983 to speak to a Michigan breaking and entering defense
lawyer today to discuss your case.
Representing
burglary and breaking and entering charges throughout Michigan in the counties
of: Ingham, Eaton, Clinton, Barry, Jackson, Shiawassee, Gratiot, Washtenaw,
Livingston, Kent and in the cites of: Lansing, East Lansing, Mason, St. Johns,
Bath, Hastings, Jackson, Corunna, Durand, Ithaca, Ann Arbor, Brighton, Howell,
and Grand Rapids.