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Burglary Defenses

A defendant facing burglary charges or any criminal charges needs a strong defense. Whether you've been charged with first-degree or second-degree burglary, you could face serious penalties, including prison time. At a minimum, you will end up with a criminal record if convicted. Fortunately, you have options.

Your burglary defense attorney can raise one of several defenses to the burglary charges. In some cases, they can claim mistaken identity. Or they may argue that you had permission to be on the owner's property at the time of the offense.

Sometimes, your criminal defense attorney can prove that law enforcement lacked probable cause to arrest you in the first place. Depending on the facts of your case, there may be several possible defenses.

If you are facing charges of burglary, it's important that you understand how common defense strategies can help you at trial. If convicted, you may be sentenced to state prison. You will also have to pay significant fines. Not only that, but nobody also wants to be a convicted burglar. This type of crime is hard to explain to a potential employer.

Basic Elements of Burglary

Before diving into the most common burglary defenses, it makes sense to revisit the elements of burglary that the prosecution must prove. It's also helpful to review the elements of robbery, a similar crime that involves theft by force.

Burglary consists of:

  1. The unauthorized breaking and entry
  2. Of a building or occupied structure
  3. With the intent to commit a crime inside

For the prosecutor to secure a burglary conviction, they must prove each element of the crime. If they fail, the judge will have no choice but to dismiss the burglary charges.

Common Defenses to a Burglary Charge

Below, we explain some possible defenses for a first-degree, second-degree, or third-degree burglary charge.

Actual Innocence

The most obvious burglary defense, and the one that most defendants in any criminal case will try, is a claim of actual innocence. This defense requires your criminal defense lawyer to convince the court that you didn't commit the acts in question.

The prosecution bears the burden of proving your guilt beyond a reasonable doubt. To defeat a burglary charge, your criminal defense attorney must create plausible doubt in the minds of the jury. If they have any doubt as to whether you committed the crime, they must find you not guilty.

One of the problems with claiming your innocence is that the jury may not believe you. Your criminal defense lawyer must demonstrate that you had nothing to do with the crime. The jury may wonder why the prosecutor pursued the burglary charges if you are innocent.

Your burglary defense lawyer must poke holes in the prosecution's evidence. They may be able to present an alibi or create doubt as to the scientific reliability of a forensic expert. An acquittal is likely if your criminal defense lawyer can successfully sow seeds of doubt among the jury.

'It Isn't What It Seems'

Another defense tactic involves the defendant admitting that they engaged in the behavior described by the prosecution, but it does not amount to a crime. Defendants commonly argue that they had the consent of the owner—or occupier—of the property to enter. If you can prove this, there was no unauthorized breaking and entry. This is a particularly effective burglary defense under certain circumstances.

If you had consent to enter a property and the owner/occupier never explicitly revoked that consent, you have a strong argument that there was no unauthorized breaking and entry. Even if you erroneously believed that you had permission to enter the property, this could be enough to defeat the burglary charge as long as your belief was reasonable.

Lack of Intent

One of the elements of a burglary charge is that you had the intent to commit a crime once inside the property. So, the state must prove you had the specific intent to commit a crime once inside a building. For example, they may be able to prove that you had burglary tools on your person when you were arrested. Or you may have a deadly weapon with you when law enforcement arrives at the scene.

One possible defense to a burglary charge is voluntary intoxication. If your criminal defense attorney can prove that you were intoxicated at the time of the alleged offense, they may be able to prove that you did not have the ability to form the requisite intent. This applies to both intoxication by alcohol or a controlled substance.

The same is true if you can prove that you were suffering from a mental illness or deficiency at the time of the break-in.


One defense you can raise is entrapment. This argument alleges that someone entrapped you to commit the crime when you otherwise would not have. For example, in the State of Florida, you can claim entrapment if a member of law enforcement puts you in a position you usually wouldn't find yourself in.

Entrapment is very difficult to prove. However, it can be a strong defense if your attorney can submit sufficient evidence to prove entrapment.

Entrapment is a defense offered by people charged with various serious crimes. For example, a defendant may argue that they were entrapped when charged with shoplifting. It's also common to use this defense when charged with solicitation of a prostitute. It rarely works, especially with a residential burglary or any serious crime.

It is extremely difficult to convince a judge or jury that you would not have committed the act had you not been unfairly encouraged.

If You've Been Charged With a Burglary Offense, Speak With an Attorney Today

If you've been charged with any criminal offense, you have a right to defend yourself. It's a good idea to meet with a burglary defense lawyer so they can review your case. You can contact one of the law offices near you for a case evaluation.

The best way to present the best defense is to hire a legal professional experienced in such matters. You may be facing a prison sentence if convicted. You can get started by contacting a criminal defense attorney to discuss your case and determine your options.

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