A prime target for burglars can be the residences of college students who are away for the holidays or summer breaks. With so many colleges and universities in Massachusetts, and the greater Boston area, the holiday season can see an increase in break-ins. The specific facts and circumstances involved in a break-in can affect how the crime is prosecuted, and what charges may apply.

What is burglary?

Similar to the common law definition, burglary is defined as breaking and entering into a dwelling house in the night time, with the intent to commit a felony.

See Massachusetts General Laws Chapter 266, Sections 14 and 15.

However, there are a number of other statutory violations even when for breaking and entering other buildings, ships, trailers, or railway cars. These also include break-ins at any time of day. The penalties for these other various violations can range from fines and probation up to, and including twenty (20) years in prison.

See generally Massachusetts General Laws Chapter 266.

"Breaking" and "Entering" in the "Night Time"

"Breaking" does not have to mean smashing a window, or picking a lock. Opening an unlocked door can be sufficient to be considered breaking in, but walking through an open door may not qualify as "breaking". "Entering" may only require a part of the body or instrument to be inside the house, and does not require the person's whole body entering the house. The "night time" is considered anytime an hour after sunset and an hour before sunrise.

Armed Burglary vs. Unarmed Burglary

The law provides for different penalties if the burglar is armed or unarmed.

  • Armed/Assault/Weapons: Armed burglary involves a burglar entering a dwelling, who is armed with a dangerous weapon at the time they break in, or if they arm themselves after entry, or if they assault a person lawfully inside. A burglar armed with a firearm faces additional penalties.
  • Unarmed: Unarmed burglary would include burglary without having a deadly weapon, without arming themselves, nor making an assault upon a person inside.

What is considered a dangerous weapon?

When the dangerous weapon involved is a gun or firearm, there are additional penalties and minimum jail time. However, any number of objects may be considered a dangerous weapon to constitute armed assault. A "dangerous weapon" is any object constructed or used as to be likely to produce death or great bodily harm. This could include a knife, baseball bat, or even a dog.

What is considered a dwelling house?

Breaking into a business, warehouse or office would not generally be considered a burglary because they are not usually a "dwelling house." A dwelling house is a place where a person would regularly sleep. This includes a house, apartment, or even a motel.

"Assault" during a burglary

If a burglar assaults a person lawfully inside the dwelling, the penalties are increased to those of armed burglary, even if the assailant didn't use a weapon. Remember, assault does not necessarily have to include actual harm. There does not even need to be any physical contact in order to constitute simple assault. The act of intending to cause a person reasonable apprehension of imminent harm or offensive contact is enough to be considered assault.

What are the penalties for burglary?

Breaking and entering can be charged as a misdemeanor or a felony, depending on the specific facts of the case. If charged as a misdemeanor, penalties could include a fine, probation, and payment to any victims.

Unarmed Burglary is charged as a felony, with penalties including prison of up to twenty (20) years. If the person has a previous burglary conviction, prison shall be for a minimum of five (5) years.

A conviction for armed burglary, or burglary with assault carries a minimum of ten (10) years in prison, with a maximum penalty of life in prison. If armed with a firearm, the minimum penalty is fifteen (15) years in prison. If the person has a previous burglary conviction, prison shall be for a minimum of twenty (20) years, without probation.

What are some possible defenses to a charge of burglary?

An experienced criminal defense attorney may find evidence to counter the prosecution's charges, including finding inconsistencies in the accusers statements, calling other witnesses to corroborate the accused's statements. Another possible defense may include lack of intent to commit a felony, or had the consent to enter the dwelling.

If you are charged with burglary, you may not know how to respond. A qualified criminal defense attorney can help you navigate the difficult process ahead. An experienced attorney focused in criminal defense will be able to clarify the individual issues facing a client, identify the elements of the case, and defend their client in court.