Breaking and Entering Vs. Burglary: What Are the Differences?

Two terms that often get tossed around in courtroom dramas and police procedurals are “breaking and entering” and “burglary.” To be as commonly used as these two terms are, there are a lot of misconceptions about these crimes and what comprises them.

Usage varies from state to state, but burglary and breaking and entering are serious crimes everywhere. If you have been charged with one of these offenses, you will need legal representation to ensure that your rights as a defendant are protected and that your case is properly heard.

In this article, we will look at Georgia’s criminal statutes and offer some clarification on burglary and breaking and entering.

What’s the Difference Between Burglary and Breaking and Entering?

In Georgia, there is no difference whatsoever between burglary and breaking and entering. All such crimes in Georgia are considered “burglary,” and the distinction that other states make between the two offenses are nonexistent in Georgia law.

In other states where the two crimes are considered separate, there is typically one of two models:

In some states that distinguish between the two, “burglary” happens when someone enters an occupied structure or vehicle without permission and with the intent to steal or commit a felony; “breaking and entering” is the term when the same thing happens in an otherwise unoccupied building or vehicle.
In others, “burglary” happens when someone enters a building or vehicle without permission and with the intent to commit a crime; “breaking and entering” happens when someone does the same, without the intent to commit a crime.

Again, in Georgia, no distinction is made between the two terms. There are, however, two degrees of burglary with which someone can be charged in Georgia:

First-degree burglary is committed when a person enters a dwelling or vehicle being used as a dwelling without permission and with the intent to steal or commit a felony.
Second-degree burglary is committed when a person enters any other building or vehicle without permission and with the intent to steal or commit a felony.

How are “Breaking” and “Entering” Defined

Many defendants think they can base a defense on the argument that they didn’t have to break into a house because the window was open, or that they never entered the building, but just reached through an open window. Neither defense will hold water.

In every state, “breaking” or “breaking in” is defined very broadly, so that making any effort whatsoever to enter a building or vehicle without permission is considered to be breaking. Even if the homeowner themselves opened the door and invited you in, if you entered their home under false pretenses with the intent to steal from them or commit another felony, you would be guilty of burglary.

“Entering” is also very broadly defined in law. Even if you never set foot inside the structure, doing something as simple as reaching through an open widow, if done with the intent to commit a crime, would be considered “entering.”

Not All Burglary Involves Theft, Breaking, and Entering

When we say the word “burglary,” most people think exclusively of theft. That’s not the case in Georgia, nor in most other states. Nothing needs to be stolen in order for a burglary to have happened:

Entering someone’s home for the purpose of harming them is burglary.
Entering a building with the intent to steal something but leaving empty-handed is burglary.
Entering a construction site with the intent to vandalize or damage property is burglary.

Again, in Georgia, burglary is defined as entering a building without permission and with the intent to steal or commit a felony. Even if no further crime is actually committed, a prosecutor may be able to prove that a defendant entered with the intent to commit a crime, leading the court to render a guilty verdict.

What Are Valid Defenses Against a Burglary Charge?

The three most viable defenses against most burglary charges are:

Consent to enter property – If the defendant can prove that they had permission from the owner or occupant of the property to enter, they may be found not guilty of burglary. Note that this would not be a defense for any crimes that are committed once the defendant is inside the property.
Breaking without entering – If a person breaks a window or door but then does not in any way enter the home, they may be able to avoid a burglary conviction. However, they will likely face charges for the lesser offense of attempted burglary.
Lack of evidence – As in all criminal cases, the burden of proof falls to the prosecutor. If the prosecutor cannot produce evidence that convinces a jury beyond a reasonable doubt that a burglary was committed, then the jury should not choose to convict.

What Are the Potential Consequences to a Burglary Charge?

In Georgia, someone found guilty of first-degree burglary can face prison sentences ranging from one to 20 years for a first offense. A second conviction can lead to a sentence of two to twenty years, and a third offense brings a minimum five-year sentence with a maximum of 25 years.

Second-degree burglary can lead to one to five years in prison for a first offense and one to eight years for a second offense.

In addition to a prison sentence, individuals convicted of burglary in Georgia may be ordered by the court to pay restitution to the victim(s), up to the actual damages incurred during the burglary.

Are you facing a criminal charge? Talk to Bushway Law Firm by calling 478-621-4995.

Gregory Bushway is a former prosecutor who has successfully served as a criminal defense attorney in Macon, Georgia, since 2013. Having worked on many different sides of the law, he knows your opponent and will fight for your rights. Tell us about your case today: 478-621-4995

Bushway Attorney at Law