NRS 205.060 defines "burglary" in Nevada as entering a building or vehicle with the intent to commit any of the following offenses inside:
- Petit larceny or grand larceny,
- Assault or battery on any person,
- A felony, or
- Obtaining money or property by false pretenses
People face liability for burglary merely by entering the building or vehicle with the intent to commit one of these crimes, even if they do not follow through with their planned crime.
- If the defendant had no deadly weapon: 1 - 10 years in Nevada State Prison
- If the defendant had a deadly weapon: 2 - 15 years in Nevada State Prison
The court may also impose a fine of up to $10,000.
The following arguments are common legal defenses in a burglary case:
- The defendant had no intent to commit a crime prior to entering the building or vehicle,
- The defendant was falsely accused, and/or
- The police committed misconduct.
In this article, our Las Vegas criminal defense attorneys discuss:
- 1. What is burglary in NV?
- 2. Does it require breaking and entering?
- 3. Can the charge get reduced or dismissed?
- 4. Can I go to jail?
- 5. How do I fight the charges?
- 6. Can I seal the case?
- 7. Can I get deported?
- 8. Related offenses
Burglary is the entry into any
- plane, or
with the intent to commit any of the following crimes inside:
- Petty larceny: stealing money or items valued at less than $650
- Grand larceny: stealing money or items valued at $650 or more
- Battery: unlawful touching, such as a beating
- Assault: putting someone in imminent fear of being unlawfully touched
- A felony: a crime which carries a minimum of one (1) year in prison
- Obtaining money or property by false pretenses: defrauding someone for money or goods
In order to convict someone of burglary, the prosecutor does not need to prove that the suspect actually committed any of these offenses inside the structure or vehicle. Merely having the criminal intent to commit one of these offenses at the time of entry is sufficient.1 Boulder City criminal defense attorney Michael Becker gives an example:
Example: Hector walks into his workplace at night intending to steal the $1,000 his boss keeps in the safe. But once he goes inside, he feels guilty and decides to not to steal anything. In this case, Hector can still be charged with burglary merely for intending to commit theft at the time he entered the building. The fact he had a change of heart does not let him off the hook.
If Hector in the above example did follow through with stealing the money, then prosecutors could charge him with two offenses: burglary and grand larceny.2
1.1. The shoplifting exception
Nevada law recognizes that it is disproportionate to saddle small-time theft suspects with a burglary charge. Therefore, people suspected of shoplifting less than $650 during business hours may not be charged with burglary, only petit larceny. It makes no difference if the person had the intent to steal prior to entering the store:
Example: Jody walks by CVS during her lunch break and decides to steal a lipstick. So she walks in, grabs the makeup, and runs out. If caught, Jody would be cited only for petit larceny and not burglary. If Jody broke in after hours while the store was closed, then she would face both petit larceny and burglary charges.
Note that this shoplifting exception does not apply to people who have been previously convicted of:
- petty larceny two (2) or more times in the previous seven (7) years, or
- a felony
Therefore, convicted felons or repeat shoplifters will face burglary charges if they attempt to shoplift again.3
1.2. Possession of burglary tools
It is a separate crime in Nevada to possess tools to carry out burglary if the circumstances suggest that the person intended to use the tools for burglary.4 Mesquite criminal defense attorney Neil Shouse gives an example:
Example: Acting on a tip, police get a warrant to search Josh's home. There they find several picklocks and other instruments traditionally used to break locks. The police also find a list of residences with the dates and times that the occupants will be away. In this case, prosecutors would probably charge Josh for violating NRS 205.080. This is because he had 1) tools used for breaking and entering, and 2) lists of unoccupied homes, indicating his intent to burglarize them.
In the above example, it is irrelevant that Josh was not caught trying to enter someone's home. Merely possessing picklocks under suspicious circumstances is sufficient for a prosecutor to bring charges for possession of burglary tools.
No. A suspect may be charged with burglary even if there was no forced entry.5
In other words, people with the intent to commit a felony or larceny inside a building or vehicle can still be convicted of burglary even if they:
- entered through an open door or window,
- entered through an unlocked door or window, or
- were invited to come inside
However, defendants who do "break and enter" are at a severe disadvantage when fighting burglary charges...
Judges and juries may infer that defendants who broke and entered had "burglarious intent." Therefore, this puts the burden on the defense attorney to present evidence to the court that the defendant had no criminal intent.6
Possibly, depending on the case. The defense attorney's role is to discover all available evidence favorable to the defendant while casting doubt on any evidence favorable to the state.
If the defense attorney can show the prosecutors that they have insufficient evidence to sustain a conviction, then the prosecutors may agree to lower the charge to the misdemeanor petty larceny or possibly a dismissal.
Note that prosecutors are more likely to extend a good plea bargain to defendants with no prior criminal record and who are cooperative with police.
The punishment depends on whether the defendant allegedly committed the burglary while possessing a deadly weapon, such as a gun, knife, or lead pipe:7
|Burglary conviction||Penalties (category B felony)|
Without a deadly weapon
With a deadly weapon
Note that defendants with previous burglary convictions are not eligible for probation.8
4.1. Possession of burglary tools
Violating NRS 205.080 is a gross misdemeanor in Nevada. The maximum sentence is:
- 364 days in jail, and/or
- $2,000 in fines9
The three most common legal defenses to charges of violating NRS 205.060 are:
- The defendant had no intent to commit a felony or larceny,
- The defendant was falsely accused, and/or
- The police committed misconduct
5.1. The defendant had no intent to commit a felony or larceny
A person does not commit the crime of burglary if he had no intent to commit a felony or larceny prior to entering the building, structure, or vehicle.10 Henderson criminal defense attorney Michael Becker gives an example of how timing is essential to determining whether a defendant had intent:
Example: Jan and Sam live next door to each other in a neighborhood where no one locks their doors. One day Jan enters Sam's vacant home to return a phone charger Jan borrowed. Once inside, Jan notices a Rolex on Sam's bed table. Jan takes it and leaves Sam's house with it.
In the above example, Jan did not commit burglary because she formed the intent to steal the Rolex after she already entered the house, not before. Instead, Jan would face just grand larceny charges for taking the Rolex without Sam's permission.
Typical evidence that prosecutors offer in proving that a defendant had burglarious intent includes:
- the police report,
- surveillance video, and/or
- recorded communications by the suspect
In some cases, intoxication may be a defense to burglary if the defendant was too incapacitated to form intent.11
As long as the defense attorney can raise a reasonable doubt that the defendant had burglarious intent, the charge should be dismissed.
5.2. The defendant was falsely accused
Sometimes the police arrest the wrong person for burglary. Typical reasons for these mistaken arrests include:
- The defendant was falsely accused by someone else out of revenge or anger,
- The defendant resembles the real perpetrator, and/or
- The defendant has the same name as the real perpetrator.
Furthermore, many alleged burglary incidents occur by masked perpetrators in the dark of night. So it may be very difficult to discern the identity of the suspect through eyewitnesses or surveillance video. And this could lead to the wrong person getting charged.
If the defense attorney can show that the prosecutors' evidence is too unreliable or inadequate to identify the defendant as the burglar, then the charge should be dismissed.
5.3. The police committed misconduct
Occasionally police make mistakes that violate defendants' rights. Examples of such police misconduct include:
- Coercing a confession,
- Conducting a search and seizure that violates the Fourth Amendment,
- Planting evidence or fabricating evidence, and/or
- Feeding leading questions to witnesses during a line-up
If this happens, the defense attorney can file a motion to suppress evidence asking the judge to disregard all the evidence that the police unearthed through wrongful means. If the court grants the motion, then the D.A. may be left with too weak a case to continue. And the prosecutor may be more willing to dismiss the charge or offer a favorable plea bargain.
Usually yes, though the waiting period depends on whether the theft allegedly occurred in a residence or not.
|Nevada Burglary Conviction||Record Seal Waiting Period|
Burglary of a residence
10 years after the case ends
Burglary of a non-residence12
5 years after the case ends
Dismissal (no conviction)13
Therefore, non-citizens facing charges of violating NRS 205.060 should consult with an experienced immigration and criminal defense attorney right away. If the attorney can persuade the D.A. to dismiss the charge or reduce it to a non-removable defense, then the alien may be able to remain on U.S. soil.
Learn more about the criminal defense of immigrants.
8.1. Nevada "Home Invasion" laws (NRS 205.067)
The Nevada crime of home invasion is forcibly entering an inhabited dwelling without permission of the owner (or lawful occupant). It makes no difference whether or not a person is present at the time of the entry, or if the suspect ends up stealing anything.
Home invasion is prosecuted as a category B felony and carries the same penalties as burglary.
8.2. Nevada "Housebreaking" laws (NRS 205.0813)
The Nevada crime of housebreaking is the legal term for squatting--entering a vacant dwelling for the purpose of unlawful residency. A first offense is a gross misdemeanor, carrying
- up to 364 days in jail, and/or
- up to $2,000 in fines
8.3. Nevada "Robbery" laws (NRS 200.380)
Nevada robbery laws prohibit people from unlawfully taking property from another by force, violence, or threats of injury. A typical example is holding up a cashier at gunpoint.
Robbery is prosecuted as a category B felony carrying two to fifteen (2 - 15) years in prison. But if the defendant had a deadly weapon, the judge may as much as double the sentence.
8.4. Nevada "Larceny from a Person" laws (NRS 205.270)
Pick-pocketing is prosecuted as the Nevada crime of larceny from a person. The suspect uses no threats or violence, and the victim usually does not realize he/she has been stolen from until later.
Pick-pocketing less than $3,500 is a category C felony, carrying:
- restitution of the items allegedly stolen, and
- one to five (1 - 5) years in prison, and
- up to $10,000 in fines (at the judge's discretion)
If the stolen property is worth $3,500 or more, then larceny from a person is prosecuted as a category B felony, carrying:
- restitution of the items allegedly stolen, and
- one to ten (1 - 10) years in prison, and
- up to $10,000 in fines (at the judge's discretion)
Call a Nevada criminal defense attorney...
If you are facing burglary charges in Nevada, call our Las Vegas theft defense attorneys at 702-DEFENSE (702-333-3673). We may be able to get the charges reduced or dismissed. And if necessary, we will fight for a "not guilty" verdict at trial.
¿Habla español? Visita nuestra página web en español sobre las leyes de robo Nevada.
Arrested in California? Read our article on California burglary law | Penal Code 459 PC.
Arrested in Colorado? Read our article on Colorado burglary law | 18-4-202 - 204.
- NRS 205.060 Burglary: Definition; penalties; venue; exception.
1. Except as otherwise provided in subsection 5, a person who, by day or night, enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, vehicle, vehicle trailer, semitrailer or house trailer, airplane, glider, boat or railroad car, with the intent to commit grand or petit larceny, assault or battery on any person or any felony, or to obtain money or property by false pretenses, is guilty of burglary.
2. Except as otherwise provided in this section, a person convicted of burglary is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 10 years, and may be further punished by a fine of not more than $10,000. A person who is convicted of burglary and who has previously been convicted of burglary or another crime involving the forcible entry or invasion of a dwelling must not be released on probation or granted a suspension of sentence.
3. Whenever a burglary is committed on a vessel, vehicle, vehicle trailer, semitrailer, house trailer, airplane, glider, boat or railroad car, in motion or in rest, in this State, and it cannot with reasonable certainty be ascertained in what county the crime was committed, the offender may be arrested and tried in any county through which the vessel, vehicle, vehicle trailer, semitrailer, house trailer, airplane, glider, boat or railroad car traveled during the time the burglary was committed.
4. A person convicted of burglary who has in his or her possession or gains possession of any firearm or deadly weapon at any time during the commission of the crime, at any time before leaving the structure or upon leaving the structure, is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 15 years, and may be further punished by a fine of not more than $10,000.
5. The crime of burglary does not include the act of entering a commercial establishment during business hours with the intent to commit petit larceny unless the person has previously been convicted:
(a) Two or more times for committing petit larceny within the immediately preceding 7 years; or
(b) Of a felony.
- See e.g., Sheriff, Clark County v. Stevens, 97 Nev. 316, 630 P.2d 256 (1981)("If larceny or any felony is thereafter committed, the perpetrator has committed two crimes, and may be charged with burglary as well as larceny or the felony.").
- NRS 205.060.
- NRS 205.080 Possession of instrument with burglarious intent; making, alteration or repair of instrument for committing offense; penalty. 1. Every person who makes or mends or causes to be made or mended, or has in his or her possession in the day or nighttime, any engine, machine, tool, false key, picklock, bit, nippers or implement adapted, designed or commonly used for the commission of burglary, invasion of the home, larceny or other crime, under circumstances evincing an intent to use or employ, or allow the same to be used or employed in the commission of a crime, or knowing that the same is intended to be so used, shall be guilty of a gross misdemeanor.
2. The possession thereof except by a mechanic, artificer or tradesman at and in his or her established shop or place of business, open to public view, shall be prima facie evidence that such possession was had with intent to use or employ or allow the same to be used or employed in the commission of a crime.
- State v. Adams, 94 Nev. 503, 581 P.2d 868 (1978)("A common lawbreaking is not an essential element of the crime of burglary.").
- NRS 205.065 Inference of burglarious intent. Every person who unlawfully breaks and enters or unlawfully enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, vehicle, vehicle trailer, semitrailer or house trailer, airplane, glider, boat or railroad car may reasonably be inferred to have broken and entered or entered it with intent to commit grand or petit larceny, assault or battery on any person or a felony therein, unless the unlawful breaking and entering or unlawful entry is explained by evidence satisfactory to the jury to have been made without criminal intent.
- Funderburk v. State, 125 Nev. 260, 212 P.3d 337 (2009)("In defendant's trial for burglary while in possession of a deadly weapon charges, the district court did not err by instructing the jury that a BB gun was a deadly weapon as it constituted a firearm under NRS 202.265(5)(b), a statute referenced in NRS 193.165(6)(c).").
- NRS 205.060.
- NRS 205.080.
- State v. White, 330 P.3d 482 (Nev. 2014)("The basic policies underlying burglary statutes also support the conclusion that a person cannot burglarize his or her own home when he or she has an absolute right to enter the home. ").
- Tucker v. State, 92 Nev. 486, 553 P.2d 951(1976)("Whether intoxication is so gross as to preclude a capacity to form a specific intent is normally a fact issue for the jury to resolve.")
- NRS 179.245.
- NRS 179.255.
- INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G).