Commercial burglary is the unlawful entry into a non-residential building or structure with the intent to commit a crime inside. The crime is complete the instant you cross the threshold with that intent, whether or not you ever take anything. Most states treat it as a felony punishable by one to twenty years in prison, though some allow misdemeanor treatment when the facts are minor.
The Two Elements a Prosecutor Must Prove
A commercial burglary charge rests on two things working together: an unlawful entry and the specific intent to commit a crime once inside. Remove either and the charge collapses. Neither element means quite what it sounds like.
Unlawful Entry Without Force
You do not have to break anything. The FBI’s Uniform Crime Reporting Program defines burglary as the unlawful entry of a structure to commit a felony or theft and explicitly notes that force is not required.1Federal Bureau of Investigation. FBI Uniform Crime Reporting Program – Burglary Walking through an unlocked back door after closing counts. So does hiding in a restroom until the store empties and then emerging after everyone leaves. In that second scenario the original entry was legal, but staying after permission ended turns it into the unlawful presence the statute requires.
Courts in many states also recognize that reaching an instrument into a building can satisfy entry, but only if the tool is being used to carry out the intended crime rather than to pry open a lock. Someone threading a hook through a mail slot to pull out packages has entered the building. Someone inserting a crowbar to pop a door frame has not, because the tool is being used to gain access rather than to commit the crime itself. A handful of states reject this distinction and treat any insertion of an instrument as sufficient.
Criminal Intent at the Moment of Entry
The intent must exist at the exact moment you cross the threshold. This is the single hardest element for a prosecutor to prove and the single most important concept for understanding the charge. If you walk into a warehouse lawfully and only then decide to steal something, the crime is theft, not burglary. Burglary depends on proving you already had the criminal plan when you stepped inside.
The intended crime does not have to be theft. Entering a business after hours to vandalize equipment, assault someone, or commit arson all qualify. And the intended crime does not need to succeed. If you enter a closed office planning to steal computers but get stopped in the lobby, the burglary is already complete.1Federal Bureau of Investigation. FBI Uniform Crime Reporting Program – Burglary
The Open-Business-Hours Problem
In many states, you can be convicted of burglary for walking into a store during normal business hours if you entered with the intent to commit a crime inside. Courts call this the limited authority doctrine: the store’s open-door invitation extends only to people entering for legitimate purposes like shopping, not to someone who walked in planning to steal from the stockroom. Under that reasoning, a shoplifter who formed the intent before entering has committed burglary, not just retail theft.
Not every jurisdiction takes this view. The Model Penal Code, which many state criminal codes are built on, specifically excludes premises that are open to the public from the burglary statute.2University of Pennsylvania Law School. Model Penal Code Whether the limited authority doctrine applies where you live makes a significant practical difference in how the offense is charged, and it is one of the first questions a defense attorney will evaluate.
What Counts as a Commercial Structure
A commercial structure for burglary purposes includes far more than storefronts and offices. The defining feature is that the building is not someone’s home. Retail stores, restaurants, warehouses, factories, and office complexes are the obvious examples. The category also sweeps in government buildings, schools, places of worship, and hospitals.
The less obvious cases catch people by surprise. The FBI’s definition of structure for burglary reporting includes offices, barns, stables, railroad cars, and vessels like ships.1Federal Bureau of Investigation. FBI Uniform Crime Reporting Program – Burglary The Model Penal Code defines an occupied structure as any structure, vehicle, or place adapted for carrying on business, whether or not anyone is actually present.2University of Pennsylvania Law School. Model Penal Code Many states go further: detached storage units, locked cargo containers, construction sites, and fenced commercial yards can qualify. Some jurisdictions treat a locked company vehicle as a commercial structure if it is entered with criminal intent.
The commercial-versus-residential line matters for how a case is charged. Residential burglary almost always carries steeper penalties because of the inherent danger of confronting someone in their home. In states that grade burglary by degree, first-degree is generally reserved for residences, while commercial burglary typically falls into second or third degree.
How It Differs From Trespass, Shoplifting, and Robbery
Commercial burglary sits at the intersection of several property crimes, and the lines between them are where cases are often won or lost.
Trespass. Both crimes involve being somewhere you should not be. The difference is intent. Criminal trespass is entering or remaining on property without permission. Burglary adds the requirement that you entered planning to commit a crime inside. A teenager who sneaks into a closed warehouse to explore commits trespass. The same teenager who sneaks in planning to steal copper wiring commits burglary. The penalty gap between them is enormous.
Shoplifting. Shoplifting means entering a retail business lawfully during normal hours and taking merchandise without paying. Burglary requires either unlawful entry or an entry with criminal intent that voids the implied invitation. If you wander into a store to browse and then impulsively pocket something, that is shoplifting. If you drove to the store already planning to steal, the limited authority doctrine in some states converts the same act into burglary. Prosecutors sometimes pursue burglary in what looks like a shoplifting case when there is evidence of premeditation.
Robbery. Robbery is taking property directly from a person through force or intimidation. Burglary does not require a victim to be present or any confrontation at all. When someone breaks into a business while employees are inside and threatens them while stealing, both charges apply. That overlap drives some of the harshest sentences in property-crime cases.
Penalties
Penalties vary significantly by jurisdiction, by the facts, and by the defendant’s history. In broad terms, felony commercial burglary carries a prison sentence ranging from one year to twenty years or more. The Model Penal Code grades standard burglary (without aggravating factors) as a third-degree felony, while burglary involving a deadly weapon or intentional injury rises to second-degree.2University of Pennsylvania Law School. Model Penal Code
In some states, commercial burglary is a wobbler: prosecutors can charge it as either a felony or a misdemeanor. The decision usually turns on the value of property involved, whether anyone was hurt, whether a weapon was present, and the defendant’s record. A misdemeanor conviction can still mean up to a year in jail and fines reaching several thousand dollars.
Fines for felony commercial burglary commonly reach $10,000, though the maximum varies by state. Courts nearly always order restitution on top of fines, calculated based on the business owner’s actual loss and paid directly to the victim. Probation is a common component for first-time offenders and can include regular check-ins, drug testing, and travel restrictions.
Factors That Make It Worse
Certain facts push a commercial burglary toward the upper end of the sentencing range or trigger enhanced charges on their own.
- Possessing a firearm or other deadly weapon during the burglary. The Model Penal Code elevates any burglary involving explosives or a deadly weapon to a second-degree felony, and most states follow a similar approach.2University of Pennsylvania Law School. Model Penal Code
- Burglarizing a business while employees or customers are inside. This transforms a property crime into one that risks physical harm, and prosecutors commonly add assault or robbery counts.
- Bodily injury to anyone during the burglary. The Model Penal Code treats burglary with intentional, knowing, or reckless infliction of bodily injury as second-degree.2University of Pennsylvania Law School. Model Penal Code
- High-value losses. State sentencing tiers scale with the dollar amount of property stolen or damaged; bigger losses mean longer sentences.
- Prior convictions, especially prior burglaries. Repeat-offender laws in many states can double or triple the baseline range.
Common Defenses
Because the charge needs both unlawful entry and specific criminal intent, the strongest defenses attack one or both.
No Criminal Intent at Entry
This is the most common and often the most effective argument. If you entered the building without planning to commit a crime and only later decided to steal something, the burglary charge does not hold. Whatever happened inside may still be prosecuted as theft or vandalism, but burglary specifically requires intent at the moment of entry. Prosecutors prove intent circumstantially: bringing tools, wearing disguises, disabling cameras before entering. When that evidence is thin, the defense has room to argue intent formed afterward.
Permission to Enter
If you had the owner’s or occupant’s consent, the entry was not unlawful. This comes up when former employees enter a workplace, when business partners access shared spaces, or when someone reasonably believed they had permission even if that belief turned out to be wrong. Sincere belief based on facts that would lead a reasonable person to the same conclusion can defeat the unlawful entry element.
Intoxication
Because burglary requires specific intent, severe intoxication can negate the ability to form that intent. This does not excuse the behavior and will not help with lesser charges like trespass. But if the defense can show the defendant was too impaired to have formed a deliberate plan to commit a crime inside, the burglary count becomes difficult for the prosecution to sustain. Courts set a high bar; simply being drunk is rarely enough.
Consequences That Outlast the Sentence
The prison time and fines are only the beginning. A felony commercial burglary conviction creates consequences that follow you for years, sometimes permanently, and most defendants do not fully appreciate them until the plea is already signed.
Firearms Prohibition
Federal law prohibits anyone convicted of a crime punishable by more than one year in prison from possessing a firearm or ammunition.3Office of the Law Revision Counsel. 18 USC 922 – Unlawful Acts Because felony commercial burglary meets that threshold in every state, a conviction triggers a lifetime federal gun ban. The only exceptions are if the conviction is later expunged, set aside, or pardoned, and even then the restoration must not expressly prohibit firearm possession.4U.S. Department of Justice. Federal Statutes Imposing Collateral Consequences Upon Conviction
Employment
A felony conviction does not legally bar you from most jobs, but it makes getting hired significantly harder. Employers can consider the nature of the offense, how much time has passed, and whether the conviction relates to the job’s responsibilities. Federal law and a growing number of states have ban-the-box rules that prevent employers from asking about criminal history until after a conditional offer, but the conviction still surfaces during the background check that follows.5U.S. Equal Employment Opportunity Commission. Arrest and Conviction Records – Resources for Job Seekers Certain industries, including airport security and positions requiring security clearances, impose outright disqualification for felony convictions within specified timeframes.
Immigration
For noncitizens, a commercial burglary conviction can trigger deportation or make you permanently inadmissible to the United States. Burglary is frequently treated as either a crime involving moral turpitude or an aggravated felony for immigration purposes, depending on the sentence and the specific elements of the state statute. A sentence of one year or more on a single count is particularly dangerous because it can push the conviction into aggravated felony territory, which eliminates most forms of immigration relief. Noncitizens facing a burglary charge should consult an immigration attorney before accepting any plea, because a deal that looks favorable on the criminal side can be catastrophic on the immigration side.
Voting Rights and Professional Licenses
Felony disenfranchisement laws vary widely. Some states restore voting rights automatically after sentence completion; others require a separate application or impose a waiting period. Professional licensing boards in healthcare, finance, law, and education routinely deny or revoke licenses based on felony convictions, and the burden falls on the applicant to demonstrate rehabilitation.4U.S. Department of Justice. Federal Statutes Imposing Collateral Consequences Upon Conviction Federally assisted housing programs can also deny applications based on felony history, creating another barrier that lingers well beyond the sentence itself.