Can you be charged with burglary of a dwelling if no one 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.

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.

If you are facing burglary charges in Utah, it is critical to have an experienced criminal defense lawyer on your side.  Based in Salt Lake City, Stephen Howard has a track record of achieving real results.

Contact us today to schedule an initial consultation.