Q: Can I be charged with burglary of a dwelling (residential burglary) if nobody lives there?
Under Utah criminal law, there are three different kinds of burglary: burglary of a vehicle, burglary of a building (non-residential), and burglary of a dwelling. Burglary of a vehicle is a misdemeanor charge. Burglary of a building (non- residential) is a third degree felony, while burglary of a dwelling is a second degree felony.
In determining whether a building qualifies as a “dwelling,” courts are required to look both at the nature of the structure, its intended use, and the actual use of the building.
The best defense attorneys ask questions that police don’t.
Utah Code Ann. 76-6-201 defines “dwelling” as “a building which is usually occupied by a person lodging in the building at night, whether or not a person is actually present.”
The Utah Court of Appeals, in State v. McNearney, 2011 UT App 4, held that the focus of the analysis must be on the actual use of the structure in question.
Specifically, the court in McNearney held that a newly built house that had never yet been occupied did not qualify as a “dwelling” even though it was habitable at the time the burglary occurred.
In other Utah cases, courts have held that a building that is only sporadically occupied can still qualify as a dwelling for purposes of a Utah burglary charge.
The best attorneys understand your case involves more than just what happens in court.
If you are facing burglary charges in Utah, it is critical to have an experienced criminal defense lawyer on your side. Contact us today to schedule an initial consultation.
