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Arrested For 2nd-Degree Burglary in Colorado? 5 Defenses
Under Colorado CRS 18-4-203, second-degree burglary is defined as unlawfully entering or remaining in a building or residence with the intent to commit a crime inside. This offense can be a felony or a misdemeanor depending on the circumstances.
Section 18-4-203 states that:
(1) A person commits second degree burglary, if the person knowingly breaks an entrance into, enters unlawfully in, or remains unlawfully after a lawful or unlawful entry in a building or occupied structure with intent to commit therein a crime against another person or property.
Second-degree burglary is not the most serious form of the offense, but serious felony penalties will still result from a conviction.
1. What is second-degree burglary under CRS 18-4-203?
Second-degree burglary under CRS 18-4-203 is a serious felony offense.
Second-degree burglary is committed when a person:
knowingly breaks an entrance into;
enters unlawfully in; or
remains unlawfully after a lawful or unlawful entry in
a building or occupied structure with the intent to commit a crime against another person or property.4
A person can be convicted of this crime for remaining in a building, even when that person originally had permission.
Example: Alice enters a Kohl’s department store during normal hours but does so with the intent to hide in the bathroom until the store closes so she can steal from the company. Even though she was originally allowed in the building (as a customer) her choice to remain was unlawful.
2. What is burglary?
Burglary in Colorado is separated into three elements:
a person knowingly
entered or unlawfully remained on another person’s property
with the intent to commit any crime (other than trespass) while on the property.1
2.1 What does “knowingly” mean?
A person commits an offense knowingly if he or she:
conducts him or herself in a way or under a circumstance prohibited by a Colorado burglary law, or
is aware that the conduct is practically certain to cause a result prohibited by the law.2
A person must commit each element of the offense knowingly in order to be guilty of the crime.
2.2 Do I have to “break in” to enter or unlawfully remain?
No. While many people imagine a break-in late at night as a burglary, it is not necessary. A person could simply walk right through the front door without permission in order to commit a crime.3
Example: Carol enters into the back office of a car dealership without permission with the intent to destroy the dealerships computer system. (She wants revenge after feeling ripped off by the car she was sold). The office door was unlocked, so Carol did not have to “break in.” However, she entered unlawfully with the intent to commit a crime and can be found guilty of a burglary charge.
2.3 Do I have to already have the intent to commit a crime?
Yes. It is not enough that a person formed the intent to commit the crime after entering the premises. If the intent was formed to commit the crime after the person entered, he or she is not guilty of burglary.
3. What is a “building” or “structure” under this law?
Under Colorado law, a structure is a building if it:
offers protection against the elements
even if the roof and/or walls are in disrepair.
The building does not have to be occupied for this charge to attach. If a person enters or remains unlawfully in the building with the intent to commit a crime, a burglary could be charged against that person.
3.1 What is a dwelling?
If the structure is a dwelling, the penalties for the offense can be more severe. Examples of dwellings include, but are not limited to:
a garage attached to a home,5
a trailer home,
a jail cell6, or
Any part of a building can be a dwelling if it is part of someone’s residence or lodgings.
Example: Kim picks the lock of the front door of Jimmy’s apartment with the intent to rob him of his new flatscreen TV. She gets in, steals the TV, and leaves. Kim broke into Jimmy’s dwelling. As a result, Kim will be charged with a higher level of the offense than if she had broken into a building that was not a dwelling.
2-6 years in prison (with 3 years mandatory parole); and/or
a fine of $2,000-$500,000.
Finally, burglary is a class 2 misdemeanorif the person knowingly violated a written notice by a retailer – or a court order – specifically restraining a person from entering a particular retail location during hours which the retail store is open to the public. Penalties include
up to 120 days in jail and/or
up to $750 in fines.7
5. What defenses can I raise in my case?
To defend a case against second-degree burglary, a person can raise defenses including but not limited to:
the suspect was lawfully on the property;
the suspect did not know he or she was unlawfully on the property;
the building was not a dwelling (to avoid the higher charge);
intent to commit the crime was not formed until after the suspect was already on the premises; or
police misconduct occurred during the case.
Never assume that just because you are charged with a crime, you will necessarily be found guilty. Defenses can protect your freedoms and keep you out of prison in many cases.
Call us for help…
For questions about second-degree burglary or to confidentially discuss your case with one of our skilled Colorado criminal defense attorneys, do not hesitate to contact us.
We represent clients in and around Denver, Colorado Springs, Aurora, Fort Collins, Lakewood, and several nearby cities.