Updated
Under NRS 205.060, Nevada law defines the crime of burglary as entering a building or vehicle with the intent to commit larceny, assault, battery or any felony inside of the structure or vehicle. Residential burglary is a Category B felony punishable by 1 to 10 years in state prison.
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.
Penalties
A burglary charge may be plea bargained down to a lesser offense or possibly a dismissal in some cases. Otherwise, the punishment depends on where the burglary took place:
|
Location |
Burglary penalties* |
| Residence | Category B felony:
The judge may grant probation and a suspended sentence if:
|
| Business | Category C felony:
|
| Other structure | Category D felony:
|
| Motor vehicle |
First offense Probation and a suspended sentence, which may include up to 1 year in jail. If the defendant has two or more prior felony convictions, the judge may impose 1 to 4 years in prison and up to $5,000 in fines (at the judge’s discretion). Subsequent offense Category D felony:
|
| *Burglary is always a category B felony if the defendant had a firearm or other deadly weapon at any time during the commission of the crime or before leaving the structure or motor vehicle. The penalties include 2 to 15 years in prison and up to $10,000 in fines (at the judge’s discretion). | |
Defenses
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
1. What is the legal definition of burglary in Nevada?
Burglary is the entry into any
- home,
- business,
- structure,
- vehicle,
- plane, or
- railcar
with the intent to commit any of the following crimes inside:
- Petty larceny: stealing money or items valued at less than $1,200
- Grand larceny: stealing money or items valued at $1,200 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 (only in residential burglary cases)1
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.2 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.3
1.1. 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 (NRS 205.080).
2. Is “breaking and entering” an element of burglary in Nevada?
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
3. Can I get a Nevada burglary charge reduced or dismissed?
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.
4. What are the penalties for burglary in Nevada?
Burglary is always a category B felony if the defendant had a firearm or a deadly weapon, such as a gun, knife, or lead pipe. Penalties include:
- 2 – 15 years in prison, and
- Up to $10,000 in fines:7
Otherwise, the penalties depend on the location:
4.1. Residential burglary
Category B felony:
- 1 – 10 years in Nevada State Prison
The judge may grant probation and a suspended sentence if:
- There are mitigating circumstances, and
- The defendant was not previously convicted of burglary or an offense involving unlawful entry or invasion of a dwelling.
“Dwelling” means any structure, building, house, room, apartment, tenement, tent, conveyance, vessel, boat, vehicle, house trailer, travel trailer, motor home or railroad car, including, without limitation, any part thereof that is divided into a separately occupied unit in which any person lives or which is customarily used by a person for overnight accommodation, regardless of whether the person is inside at the time of the offense.
4.2. Burglary of a business
Category C felony:
- 1 – 5 years in prison, and
- Up to $10,000 in fines (at the judge’s discretion)
“Business structure” means any structure or building, the primary purpose of which is to carry on any lawful effort for a business, including, without limitation, any business with an educational, industrial, benevolent, social or political purpose, regardless of whether the business is operated for profit.
4.3. Burglary of a structure (other than a dwelling or business)
Category D felony:
- 1 – 4 years in prison, and
- Up to $5,000 in fines (at the judge’s discretion)
4.4. Burglary of a motor vehicle
A first offense is a category E felony. The sentence is probation and a suspended sentence, which may include up to 1 year in jail. But if the defendant has two or more prior felony convictions, the judge may impose 1 to 4 years in prison and up to $5,000 in fines (at the judge’s discretion).
A subsequent offense is a category D felony, carrying:
- 1 – 4 years in prison, and
- Up to $5,000 in fines (at the judge’s discretion)
“Motor vehicle” means any motorized craft or device designed for the transportation of a person or property across land or water or through the air which does not qualify as a dwelling or business structure under NRS 205.060.8
Note that sexually-motivated burglary also carries lifetime supervision under NRS 176.0931. But it may be possible to get off lifetime supervision after 10 years.
Learn more about using a deadly weapon in the commission of a felony (NRS 193.165).
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
5. What are the defenses to a Nevada charge of burglary?
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:
- eyewitnesses,
- 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.
6. Can I get a Nevada burglary conviction sealed?
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 business or structure, or
Burglary of a motor vehicle (subsequent offense)12 |
5 years after the case ends |
| Burglary of a motor vehicle (first offense)12 | 2 years after the case ends |
| Dismissal (no conviction)13 | Right away |
7. Can I get deported for burglary?
Yes. Burglary is considered an aggravated felony, which is a deportable offense.14
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. Related offenses
8.1. Nevada “Home Invasion” laws (NRS 205.067)
The Nevada crime of home invasion is forcibly entering a 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.
Larceny from a person is a category C felony in Nevada, carrying:
- restitution of the items allegedly stolen, and
- 1 to 5 years in Nevada State Prison, and
- maybe up to $10,000 in fines
The court may not grant probation if the victim had an infirmity.
For more information contact our Las Vegas criminal defense attorneys.
¿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.
Legal References:
- NRS 205.060.
- See 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.
- 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).