Breaking and entering under the VA Code is governed by §§ 18.2-89 through 18.2-94, and every offense in that range is a felony. The specific charge depends on four things: the type of structure entered, whether the entry happened at night or during the day, whether the person was armed with a deadly weapon, and what crime they intended to commit once inside. Penalties run from one year in prison at the low end to life imprisonment at the high end.
What “Breaking” and “Entering” Actually Mean
A “breaking” does not require smashing anything. Any use of force to create an opening counts, including pushing open a closed door or lifting a window latch. Virginia courts also recognize constructive breaking, meaning entry gained through threats, fraud, or conspiracy rather than physical force. Someone who tricks a homeowner into opening the door has still committed a break under the law.
The “entering” element is satisfied the moment any part of the body crosses into the structure. Reaching a hand through an open window is enough. Courts have also held that inserting a tool into a building to retrieve something inside qualifies as entry. Prosecutors must prove both elements to sustain a charge.
The Five Burglary Statutes
Virginia splits burglary across five sections, each covering a different combination of structure, timing, and intended crime.
Section 18.2-89: Common-Law Burglary
Breaking and entering a dwelling at night with intent to commit a felony or any larceny is a Class 3 felony. If the person was armed with a deadly weapon during the entry, the charge becomes a Class 2 felony.1Virginia Code Commission. Virginia Code 18.2-89 – Burglary; How Punished
Section 18.2-90: Entry With Intent to Commit Murder, Rape, Robbery, or Arson
This section reaches further than common-law burglary. It covers entering a dwelling at night without breaking, breaking and entering a dwelling during the day, or breaking and entering any building permanently attached to real property, any ship or river craft, any railroad car, or any automobile or trailer used as a dwelling. The person must have entered with intent to commit murder, rape, robbery, or arson. The offense is a Class 3 felony, elevated to Class 2 if the person was armed.2Virginia Code Commission. Virginia Code 18.2-90 – Entering Dwelling House, Etc., With Intent to Commit Murder, Rape, Robbery or Arson; Penalty
Section 18.2-91: Entry With Intent to Commit Larceny or Other Felonies
Section 18.2-91 covers the same types of entries as § 18.2-90, but with a different set of intended crimes: larceny, any felony other than murder, rape, robbery, or arson, or assault and battery. Penalty is one to 20 years in a state correctional facility. Alternatively, a judge or jury can impose up to 12 months in jail, a fine up to $2,500, or both. Being armed with a deadly weapon elevates the charge to a Class 2 felony.3Virginia Code Commission. Virginia Code 18.2-91 – Entering Dwelling House, Etc., With Intent to Commit Larceny, Assault and Battery or Other Felony
Section 18.2-92: Entry With Intent to Commit a Misdemeanor
Breaking and entering an occupied dwelling with intent to commit a misdemeanor other than assault and battery or trespass is a Class 6 felony. This applies day or night. Being armed with a deadly weapon bumps the charge to a Class 2 felony.4Virginia Code Commission. Virginia Code – Article 2. Burglary and Related Offenses
Section 18.2-93: Entering a Bank While Armed
Entering a bank while armed with a deadly weapon and intending to steal money, bonds, or other financial instruments is a Class 2 felony automatically, regardless of whether the entry happened during the day or at night.5Virginia Code Commission. Virginia Code 18.2-93 – Entering Bank, Armed, With Intent to Commit Larceny
Why Intent Controls the Charge
Every burglary charge in Virginia requires proof that the person intended to commit a specific crime at the moment of entry. Entry alone is not enough. If prosecutors cannot prove intent, the charge may drop to trespass or another lesser offense.
Because intent is an internal mental state, prosecutors prove it through circumstantial evidence: what the person brought with them, what they did once inside, statements they made, and the overall circumstances. Someone found inside a home at 3 a.m. with a pillowcase full of electronics presents a much easier intent case than someone found in a neighbor’s unlocked garage.
The intended crime also decides which statute applies. Entering with intent to commit robbery triggers § 18.2-90 (Class 3 felony). Entering with intent to commit larceny triggers § 18.2-91, which carries the same 20-year ceiling but leaves room for a lighter jail sentence. The same physical act can produce very different outcomes depending on what the person planned to do inside.
Sentencing Ranges by Felony Class
- Class 2 felony (§§ 18.2-89, 90, 91, or 92 when armed; § 18.2-93 by default): imprisonment for life or any term of 20 years or more, plus a fine up to $100,000.6Virginia Code Commission. Virginia Code 18.2-10 – Punishment for Conviction of Felony; Penalty
- Class 3 felony (§§ 18.2-89 and 18.2-90): 5 to 20 years in prison and a fine up to $100,000.
- Section 18.2-91 (its own penalty scheme): 1 to 20 years in a state correctional facility, or up to 12 months in jail and a fine up to $2,500, or both.
- Class 6 felony (§ 18.2-92): 1 to 5 years in prison, or up to 12 months in jail and a fine up to $2,500, or both.
The armed-with-a-deadly-weapon upgrade to Class 2 applies across every burglary statute. That single fact can turn a case with a potential one-year jail sentence into one carrying 20 years to life. It is the most consequential sentencing variable in Virginia’s burglary framework.
Possession of Burglary Tools
Virginia Code § 18.2-94 makes it a Class 5 felony to possess tools with intent to commit burglary, robbery, or larceny. A Class 5 felony carries one to 10 years in prison, or at the discretion of a judge or jury, up to 12 months in jail and a fine up to $2,500.7Virginia Code Commission. Virginia Code 18.2-94 – Possession of Burglarious Tools, Etc.
The statute creates a rebuttable presumption against the defendant: possession of burglary tools by anyone other than a licensed dealer is presumed to be for a criminal purpose. Courts assess intent by looking at where the person was found, the time of day, whether they had gloves or masks, and whether they have prior burglary convictions. Prior convictions have been admitted as evidence of intent to commit another break-in.
Where Trespass Ends and Burglary Begins
Trespass and burglary are often confused. Under Virginia Code § 18.2-119, criminal trespass means going onto or remaining on someone’s property after being told not to, whether verbally, in writing, by posted signs, or by court order. It is a Class 1 misdemeanor, punishable by up to 12 months in jail and a fine up to $2,500.8Virginia Code Commission. Virginia Code 18.2-119 – Trespass After Having Been Forbidden to Do So Burglary requires two things trespass does not: a breaking (or unauthorized entry into a structure) and specific intent to commit a crime inside. That intent element is what turns a misdemeanor into a felony carrying years or decades in prison.
No Deadline on Prosecution
Virginia has no statute of limitations for felonies. Prosecutors can file burglary charges years or decades after the alleged offense. An old incident does not go away because time has passed.
Common Defenses
Because intent is the linchpin, the strongest defenses attack that element.
- No criminal intent at the time of entry. If you entered for a non-criminal purpose and only formed criminal intent after getting inside, the entry itself was not burglary. Someone who steps into an unlocked office to escape bad weather and then decides on impulse to take a laptop has different legal exposure than someone who went in with a plan to steal. The prosecution must prove intent existed at the moment of entry.
- Consent or claim of right. If the property owner gave permission, there is no unauthorized entry. An honest belief in a legal right to be in the structure or to take the property can also undermine intent.
- Mistaken identity. Burglaries often happen at night in poor visibility, and witnesses can be unreliable. Identification evidence, alibi testimony, and forensic evidence are all open to challenge.
Consequences Beyond the Sentence
A burglary conviction triggers a chain of civil disabilities that continue after the sentence is served.
Loss of Civil Rights
A felony conviction in Virginia strips the right to vote, serve on a jury, run for public office, and become a notary public. The Governor has sole discretion to restore these rights (firearm rights excepted) after incarceration ends. Restoration is not automatic and requires an application through the Secretary of the Commonwealth’s office.9Restore Virginia. Restoration of Rights Process
Loss of Firearm Rights
Federal law under 18 U.S.C. § 922(g)(1) prohibits anyone convicted of a crime punishable by more than one year of imprisonment from possessing, transporting, or receiving a firearm or ammunition.10Office of the Law Revision Counsel. 18 USC 922 – Unlawful Acts Every Virginia burglary offense carries a potential sentence exceeding one year, so any conviction triggers this ban. Restoring firearm rights requires first having civil rights restored by the Governor, then petitioning the circuit court. A full pardon without firearm restrictions also works.11Virginia State Police. Restoration of Firearm Rights
Restitution
Under Virginia Code § 19.2-305.2, courts may order a defendant to return stolen or damaged property or, when return is impractical, pay an amount equal to the greater of the property’s value at the time of the offense or at the time of sentencing.12Virginia Code Commission. Virginia Code 19.2-305.2 – Amount of Restitution; Enforcement Restitution comes on top of any fines and imprisonment.