In Michigan, if you break and enter into a building or structure other than a dwelling with the intent to commit a felony or larceny, you are guilty of the crime of breaking and entering or more commonly refereed to as burglary. It is a felony punishable by up to 10 years in prison. Essentially, the prosecutor must prove that the defendant did three things: 1) broke into a building, 2) entered the building, and 3) at the time of breaking and entering he intended to commit a felony or larceny. This is a very serious offense that requires experienced representation from a Michigan criminal defense attorney. Let’s look at the elements in more detail.
For purposes of the breaking and entering statute (MCL 750.110), building is defined as a:
- railroad car
- any other building or structure
The building or structure does not have to be broken. Any amount of force used, such as opening a door, raising a window, or taking off a screen, however slight, constitutes breaking. All that is required is that some force is used to gain entry, even if the door or window is already partially opened. However, walking through an open door without applying any force to move the door is not breaking.
Some part of the body is required to have entered inside the building or structure. The entire body is not required to be inside. A partial part of the body is sufficient.
Intent to Commit a Crime or Felony
In order to prove this element, the prosecutor must allege and prove a particular felony. Breaking and entering alone is not sufficient to presume that the accused had the intent to steal simply because of breaking and entering. There must be additional circumstances that would reasonably lead to the conclusion that the accused had the intent to steal or commit a felony of some kind. This may be reasonably inferred from the nature, time, and place of the defendant’s actions before and during the breaking and entering. Intent may be reasonably inferred from the totality of the circumstances disclosed by witness testimony.
Breaking and Entering of an Occupied Dwelling
This is an added element in that the prosecutor must prove that the building or structure was an “occupied dwelling.” That means it had to be a place to live at the time of the breaking and entering. It doesn’t matter if they were actually home at the time it occurred.
Aggravating Factor– Use of a Firearm
If the accused had a firearm during the commission of the breaking and entering (whether it was actually used or not) heightens the maximum penalty from 10 years to 20 years in prison and fines up to $5,000.
Intoxication– Since breaking and entering is a specific intent crime, intoxication can be a defense. Simply because the accused is drunk or under the influence does not automatically get him off the hook. The degree and level of intoxication will determine that. His blood alcohol content (BAC) or level along with an evaluation from the Forensic Center will determine that.
Lack of Intent– If the prosecution cannot prove, either directly or indirectly by circumstantial evidence that the accused had the intent to commit a theft or a felony, the accused would be entitled to a not guilty verdict or dismissal if no evidence was presented or could be inferred at the preliminary exam. There are plenty of examples where mentally incapacitated persons have wandered into someone’s home or building with no intent of committing any crimes or homeless persons have been known to enter an abandoned building, tool shed, or home for warmth or protection of the elements. In any event, these examples would not satisfy the intent element.
Entry with Consent– If the accused entered the building or structure with consent of the owner, he cannot be found guilty of the offense.
Entry without Breaking– This has all the same elements of B&E except in this case the entry occurs without breaking, meaning no force of any kind was used to gain entry. For example, the accused walked through an already open door. This is a felony punishable by up to five years in prison.
Entry Without Owner’s Permission– Commonly referred to as trespassing, this is entering a building without having authority or permission of the owner or the owner’s agent. This is commonly used as a ;plea deal in cases where the defendant has no prior criminal history, the case is weak, or the prosecutor cannot prove the “intent to commit a felony or theft” element. It is a one-year misdemeanor.
As you can see, breaking and entering is a very serious crime which can have a devastating impact on your life and future. Sentencing options may be available to you which could keep any convictions off your public record or there could be legal and factual issues with your case that could be used to get a reduction in the charges or a dismissal. Contact Austin Legal Services, PLC today at (517) 614-1983 to speak to a Michigan breaking and entering defense lawyer today to discuss your case.
Representing burglary and breaking and entering charges throughout Michigan in the counties of: Ingham, Eaton, Clinton, Barry, Jackson, Shiawassee, Gratiot, Washtenaw, Livingston, Kent and in the cites of: Lansing, East Lansing, Mason, St. Johns, Bath, Hastings, Jackson, Corunna, Durand, Ithaca, Ann Arbor, Brighton, Howell, and Grand Rapids.