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.

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