In Colorado, burglary is knowingly entering (or unlawfully remaining on) someone else’s property while intending to commit a crime other than trespass. Burglary is usually a felony but can be a misdemeanor depending on the case.
Examples of burglary include:
- Prying open a locked cash register to steal the money
- Breaking into a house to kidnap someone inside
- Hiding in a store until after it closes so that you can vandalize it
In this article, our Denver criminal defense lawyers will address the following key issues regarding Colorado burglary law.
- 1. Elements
- 2. Degrees of Burglary
- 3. Punishment
- 4. Defenses
- 5. Burglary Tools
- Frequently Asked Questions
- Additional Reading
1. Elements
In Colorado, burglary consists of three essential elements:
- You knowingly,
- Enter or unlawfully remain on someone else’s property,
- With the intent to commit any crime (other than trespass) while you are on or inside the property.
1) “Knowingly” Meaning
In Colorado, you commit burglary knowingly when:
- You conduct yourself in a way or under a circumstance prohibited by one of Colorado’s burglary laws, or
- You are aware that your conduct is likely to result in an act prohibited by the burglary law.1
The “knowingly” requirement applies to every element of the offense. Thus, for instance, if you do not know you are on someone else’s property without lawful authority, you are not guilty of burglary.
2) “Entering or Unlawfully Remaining on Property” Meaning
You do not need to “break into” property in order to commit burglary. It is enough that you simply enter through an open door or remain on the property when you are not licensed or invited to do so.2
If you are lawfully on the premises, however, you cannot be guilty of burglary even if you intend to commit a crime.3
Example: Joe, a plumber, is hired to unclog the kitchen sink of one of his clients. He knows from prior experience that this client keeps an expensive laptop in the nook next to the kitchen. While he is in the house lawfully to work on the sink, he slips the laptop into his toolbox. Although he is guilty of theft, he is not guilty of burglary because he was lawfully on the premises.4
3) “Intent to Commit a Crime” Meaning
Contrary to popular belief, the crime you intend to commit in burglary cases does not need to involve theft. Nor does it need to be a felony. Any crime other than trespass can serve as the basis for a burglary charge.
However, the intention to commit the crime needs to have been formed
- at the time you entered the property or
- before you remained on the property unlawfully.
If you only form the intent to commit a crime after you are already there, you are not guilty of burglary.
Example: Kathy is at a party when she gets a headache. The host tells her there is a bottle of aspirin in the medicine cabinet. When Kathy opens the medicine cabinet, she sees a prescription bottle of Vicodin and decides to take it. While she is guilty of theft, she is not guilty of burglary because she was already on the premises lawfully when she formed the intent to steal the drugs.
Even if she only went to the party in order to steal the drugs, because she was an invited guest, she has still not committed burglary. If, on the other hand, she saw the drugs at the party and broke in later that night in order to steal them, then she would be guilty of burglary.
Burglary does not have to involve stealing to be a crime.
2. Degrees of Burglary
Colorado law divides burglary into three different degrees. These are discussed below from least serious to most serious.
Third-Degree Burglary – CRS 18-4-204
In Colorado, third-degree burglary is – with intent to commit a crime – entering or breaking into any vault, safe, cash register, coin vending machine, product dispenser, money depository, safety deposit box, coin telephone, coin box, or other apparatus or equipment whether or not coin operated.
Colorado’s law on third-degree burglary also applies to other locked boxes and containers, including:
- parking lot collection boxes,5
- glass display cases,6 and
- gym lockers secured with personal combination locks.7
Second-Degree Burglary – CRS 18-4-203
In Colorado, second-degree burglary is knowingly:
- breaking an entrance into,
- entering unlawfully in,
- or remaining unlawfully after a lawful or unlawful entry in
a building or occupied structure with the intent to commit therein a crime against another person or property.
A structure is a “building” if it offers protection against the elements, even if the roof and/or walls are in disrepair. Note that any part of a building can be a dwelling if it is part of someone’s residence or lodgings. Examples of dwellings are:
- a garage attached to a house,8
- hotel rooms,
- trailer homes, or
- jail cells.9
However, an animal enclosure with chicken wire for a roof would not be a building within the meaning of CRS 18-4-203 because its sheltering effect is minimal.10
First-Degree Burglary – CRS 18-4-202
Entering or remaining unlawfully in a building or dwelling in Colorado becomes first-degree burglary rather than second-degree burglary if, while on the property or while entering or leaving, you or another participant:
- assaults or menaces any person, or
- is armed with explosives, or
- uses a deadly weapon, or
- possesses and threatens the use of a deadly weapon.
Example: Oscar and Perry break into their high school one night intending to spray paint graffiti on the teachers’ lounge. Perry has a switchblade in his jacket pocket, in violation of Colorado’s law against carrying a concealed weapon on school grounds. While they are on school property, they run into the night janitor.
When the janitor takes out his phone to call the police, Perry pulls out his switchblade and threatens to cut him, a violation of Colorado’s menacing law. As a result, both Oscar and Perry can be charged with first-degree burglary.
There are three degrees of burglary in Colorado.
3. Punishment
Third-Degree Burglary Penalties
In Colorado, third-degree burglary is typically a class 2 misdemeanor carrying:
- up to 120 days in jail and/or
- a fine of up to $750.
However, 3rd-degree burglary becomes a class 1 misdemeanor if the objective of the burglary is the theft of a controlled substance lawfully kept in or upon the property. Penalties include:
- up to 364 days in jail and/or
- up to $1,000 in fines.
Second-Degree Burglary Penalties
Burglary of a dwelling is a class 3 felony in Colorado carrying:
- 4 to 12 years in prison (with 5 years mandatory parole) and/or
- a fine of $3,000 to $750,000.
The same sentence applies if the objective of the burglary is theft of either:
- a controlled substance lawfully kept within any building or occupied structure or
- one or more firearms of ammunition.
Meanwhile, burglary of an occupied structure or commercial building in Colorado is a class 4 felony carrying:
- 2 to 6 years in prison (with 3 years mandatory parole) and/or
- a fine of $2,000 to $500,000.
Also, burglary is a class 2 misdemeanor if you knowingly violate a written notice by a retailer or a court order, specifically restraining you from entering a particular retail location during hours that the retail store is open to the public. Punishments include:
- up to 120 days in jail and/or
- up to $750 in fines.
Finally, burglary of a building in other cases is a class 5 felony carrying:
- 1 to 3 years in prison (with 2 years mandatory parole) and/or
- a fine of $1,000 to $100,000.11
First-Degree Burglary Penalties
First-degree burglary is usually a class 3 felony. Punishment for Colorado first-degree burglary can include:
- 4 to 12 years in prison (with 5 years mandatory parole) and/or
- A fine of $3,000 to $750,000.
However, 1st-degree burglary carries an enhanced penalty as a Colorado “crime of violence” if:
- You used, or possessed and threatened the use of, a deadly weapon; or
- You caused serious bodily injury or death to any other person except another participant.
In Colorado, burglary is defined as knowingly entering, or unlawfully remaining on, someone else’s property with the intent to commit a crime (other than trespass).
4. Defenses
The best tactic to fight Colorado burglary charges depends on the facts of your case. In our experience, five of the most common defenses to Colorado burglary accusations include:
- You were lawfully on the property;
- You did not know you were unlawfully on the property;
- You did not enter or remain on the property with the intent to commit a crime;
- You were the victim of mistaken identity;
- There was police misconduct (such as coercing your confession of discovering evidence through an unlawful search and seizure).
Since many burglars wear masks, it is often difficult to identity the perpetrator out of a lineup.
5. Burglary Tools
It is a separate Colorado crime to:
- possess any explosive or instrument used for physically stealing or for forcible entry and
- intend that the tool be used to commit burglary.
Common burglary tools include crowbars, glass-breaking tools, wrenches, pliers, and spare key- making kits.
Possession of burglary tools to forcibly enter a dwelling for the purpose of stealing is a class 5 felony carrying:
- 1 to 3 years in prison (with 2 years mandatory parole) and/or
- a fine of $1,000 to $100,000
Otherwise, possession of burglary tools is a class 2 misdemeanor punishable by
- up to 120 days in jail and/or
- up to $750 in fines.12
Burglary can be a misdemeanor or a felony depending on the case.
Frequently Asked Questions
What is the difference between burglary and breaking and entering?
In Colorado, you do not need to “break” anything to commit burglary. Simply entering through an open door or remaining on someone’s property without permission is enough if you intend to commit a crime. Burglary focuses on unlawful entry with criminal intent, not forced entry.
Can I be charged with burglary if I was invited onto the property?
No, you cannot be charged with burglary if you were lawfully on the premises, even if you commit a crime while there. For example, if you are a invited guest at a party and steal something, you would be guilty of theft but not burglary because you had permission to be there.
What crimes can lead to a burglary charge besides stealing?
Any crime except trespass can form the basis for a burglary charge in Colorado. This includes vandalism, assault, kidnapping, or drug possession. The key is that you must have intended to commit the crime before entering or while unlawfully remaining on the property.
How serious are the penalties for burglary in Colorado?
Penalties range from 120 days in jail for third-degree burglary (like breaking into a vending machine) to four to 12 years in prison for first-degree burglary involving weapons or assault. Most burglary charges are felonies, with second-degree burglary of a home carrying four to 12 years in prison and fines up to $750,000.
Additional Reading
For more in-depth information, refer to these scholarly articles:
- From the Thief in the Night to the Guest Who Stayed Too Long: The Evolution of Burglary in the Shadow of the Common Law – Indiana Law Review.
- Burglary – Crime & Justice article giving an overview of burglary laws.
- Reformation of Burglary – William & Mary Law Review article on how burglary laws have changed and can change.
- Reconceptualizing Burglary: An Analysis of the Use of Burglary as a Criminal Enhancement – Virginia Journal of Criminal Law.
- That’s Not a Burglary! Classic Crimes and Current Codes – Houston Law Review.
Legal references:
- See CRS 18-1-501(6).
- Armintrout v. People (Colo. 1993) 864 P.2d 576.
- People v. Bondurant (Colo.App. 2012) 296 P.3d 200.
- See, for example, People v. Carstensen (Colo. 1966) 420 P.2d 820.
- People v. Garcia (Colo.App. 1989) 784 P.2d 823.
- People v. Geyer (Colo.App. 1996) 942 P.2d 1297.
- People v. Nerud (Colo.App. 2015) 360 P.3d 201.
- People v. Jiminez (Colo. 1982) 651 P.2d 395.
- People v. Nichols (Colo.App. 1996) 920 P.2d 901.
- Same.
- People v. Whiteaker (Colo. 2024) 547 P.3d 1122. The penalties for second- and third-degree burglary were different prior to March 1, 2022. Before, 2nd-degree burglary could never be a misdemeanor. And 3rd-degree burglary was either a class 5 felony punishable by 1 to 3 years in prison (with 2 years mandatory parole) and/or $1,000 to $100,000 in fines or a class 4 felony punishable by 2 to 6 years in prison (with 3 years mandatory parole) and/or a fine of $2,000 to $500,000. SB21-271. HB 23-1293.
- CRS 18-4-205.