ARS 13-1508 – 1st-Degree Burglary – Arizona Law & Penalties

ARS 13-1508 is the Arizona statute that defines the crime of first-degree burglary. People commit this offense when they engage in a burglary and do so while knowingly possessing an explosive, a deadly weapon, or a dangerous instrument.  A violation of this law can lead to a Class 2 felony punishable by over 12 years in state prison.

Note that burglary in Arizona into three different degrees. These are:

• first-degree burglary, per ARS 13-1508,
• second-degree burglary, per ARS 13-1507, and
• third-degree burglary, per ARS 13-1506.

The language of ARS 13-1508 states that: “A person commits burglary in the first degree if such person or an accomplice [commits first-degree burglary or second-degree burglary]…and knowingly possesses explosives, a deadly weapon or a dangerous instrument…”

Examples

• breaking and entering into a home with a knife for the purpose of raping the homeowner.
• entering a person’s motor vehicle with a gun for the sole purpose of stealing a watch in the glovebox.
• sneaking into a person’s apartment while carrying a crowbar and taking the person’s diamond earrings.

Defenses

Criminal defense lawyers draw upon several legal strategies to help their clients defend against burglary charges. A few common defenses include the lawyers showing that:

• the accused did not “possess” an explosive or a weapon,
• the accused was a victim of mistaken identity, and/or
• law enforcement violated one of the defendant’s constitutional rights.

Penalties

A burglary offense is a felony under Arizona’s criminal laws (as opposed to a misdemeanor). Depending on the facts of the case, a prosecutor can charge the crime as:

• a Class 2 felony, punishable by 12 years and six months in state prison, or
• a Class 3 felony, punishable by eight years and nine months in prison.

In this article, our Phoenix Arizona criminal defense attorneys will discuss what the law is under this statute, defenses available if charged, the penalties for a conviction, and related crimes.

1. How does Arizona law define “first-degree burglary”?

People in the State of Arizona commit first-degree burglary if they:

1. commit what would be second- or third-degree burglary, and
2. do so while knowingly possessing an explosive, a deadly weapon, or a dangerous instrument.¹

The term “possession” means to:

• physically possess or hold something, or
• have dominion or control over the object (for example, a driver is said to have control over a gun when it is located in the car’s trunk).²

Note that a person can come into possession of an explosive, a deadly weapon, or a dangerous instrument if he/she takes one in the course of the burglary.³

Further, for purposes of this statute, a “dangerous instrument” means anything that under the circumstances in which it is used, attempted to be used, or threatened to be used is readily capable of causing death or serious physical injury.⁴

A “deadly weapon,” as used under this law, includes obvious lethal weapons such as guns and knives.

But other objects can be deadly weapons if they are used in a way that could:

• kill someone, or
• cause them substantial harm.

Some examples may include:

• a tire iron,⁵
• an unloaded gun (if used to club or hit someone),
• a bottle (if used to attack someone),
• a BB gun, and
• a car (used in an attempt to run someone down).

2. What are the defenses to ARS 13-1508?

Defendants have the right to challenge a charge in a burglary case with a legal defense/disclaimer. Three common defenses include accused people showing that:

1. they did not possess a weapon or explosive.
2. they were a victim of mistaken identity.
3. the police violated their rights.

2.1 No possession

People are only guilty under this statute if they commit a burglary while in possession of an explosive, a deadly weapon, or a dangerous instrument. Further, “possession” has a precise legal definition.

A defense, then, is for defendants to show that they did not possess a weapon or explosive at the time of the offense. Perhaps, for example, a defendant owned a gun, but it was locked in a storage locker at his house during the commission of a crime.

2.2 Mistaken identity

People often commit burglary when it is dark out, while wearing some type of disguise, or while wearing a hat that shields their face. A result is that sometimes people will mistakenly accuse a burglary suspect. This means it is always a defense for accused people to show that they were unjustly blamed.

2.3 Violation of a constitutional right

Defendants can always try to challenge a burglary charge by showing that the police or a law enforcement agent violated one of their constitutional rights. Maybe, for example, the police:

• conducted an unlawful search or seizure,
• stopped or arrested the defendant without probable cause, or
• coerced a confession.

Under any of these scenarios, an accused can try to use the violation to exclude certain evidence from the case or get the case dropped in its entirety.

3. What are the penalties?

Violations of ARS 13-1508 are felony convictions under Arizona law.

The crime is charged as a Class 2 felony if the burglary is committed in a residential structure/residential property.

The crime, though, gets charged as a Class 3 felony if the burglary is committed in a:

• nonresidential structure,
• fenced commercial yard, or
• residential fenced yard.

A Class 2 felony is punishable by 12 years and six months in state prison.

A Class 3 felony is punishable by eight years and nine months in state prison.

The prison term for either type of felony can grow more severe if any aggravating factors are present in a case. An example of an aggravating factor is when a defendant has a prior conviction.

4. Are there related offenses?

There are three crimes related to first-degree burglary. These are:

1. theft – ARS 13-1802,
2. robbery – ARS 13-1902, and
3. trespass – ARS 13-1504.

4.1 Theft – ARS 13-1802

Under ARS 13-1802, a theft occurs when someone knowingly uses or takes a person’s property or services and does so without lawful authority.

A requirement of a burglary charge is that a defendant must commit a theft, or a felony, while in or on certain property.

4.2 Robbery – ARS 13-1902

Per ARS 13-1902, robbery occurs when people:

1. try to steal another’s property, and
2. use threats or force to complete the stealing.

If someone completes this crime with a deadly weapon or a dangerous instrument, then they will get charged of armed robbery, per ARS 13-1904.

The terms deadly weapon and dangerous instrument, as used under ARS 13-1508, have the same definitions as under ARS 13-1902.

4.3 Trespass – ARS 13-1504

Per ARS 13-1504, first degree criminal trespassing occurs when people either:

1. knowingly go on another’s property without permission, or
2. unlawfully remain on certain pieces of real property without permission.

Criminal trespass is a less severe type of felony than burglary in the first degree. First-degree trespass is a Class 5 felony under Arizona law.

For additional help…

For additional guidance or to discuss your case with a criminal defense lawyer, we invite you to contact our law firm/law office at the Shouse Law Group. Our attorneys provide both free consultations and legal advice you can trust.

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