Breaking & Entering in Massachusetts

What is considered breaking and entering in Massachusetts?

“Breaking and Entering” is essentially the illegal entry into a building, ship or vehicle with the intent to commit either a felony or misdemeanor. The term “Breaking” may be deceiving as the crime does not does not require that one go as far as smashing a window or breaking down a door. The law provides that the use of any amount of force, no matter how slight, that removes an obstruction to entry would qualify. For example, moving a door to open it is considered a “breaking.” Entering a building, ship, or vehicle through an open window may also qualify as a “breaking.” An “entry” occurs when any part of one’s body or any instrument in their control physically enters the building, ship or vehicle.

Massachusetts law requires that a crime must be intended at the time one breaks and enters the location. The penalties differ depending on whether you are charges with intending to commit a felony (crime for which you may be sentenced to state prison) or a misdemeanor (crimes which do not hold the possibility of a state prison sentence). The law allows for an inference that when one breaks and enters in the nighttime, it is fair to believe that one intends to steal.

The law also draws a distinction between a breaking and entering occurring in the daytime and one which occurs in the nighttime. “Nighttime” is defined as the time period from one hour after sunset to one hour before sunrise. All other breaking and entering cases are considered to be in the “daytime”.

What is the difference between trespassing and breaking and entering?

Trespassing is entering upon another’s property after having been forbidden to do so, either directly or by notice. Breaking and entering does not require that you have been expressly forbidden from being present. The other significant difference between these two crimes is that trespassing does not require that the defendant intend to commit any crime. Trespassing also does not make any distinction for whether it occurs at night or in the daytime.

Are there varying levels of breaking and entering?

Breaking and entering in the nighttime with the intent to commit a felony is a very serious charge with serious potential penalties. It has a number of “lesser included” offenses. Simply put, if any of the critical elements of the charge are missing, there are other lesser charges that may be brought. Eliminating any of the key elements may change the crime and, thus, the penalty.

Some examples of the “lesser included: offenses are:
If the offense does not occur in the nighttime – G.L. c. 266, § 18- Breaking and Entering in the Daytime With the Intent to Commit a Felony

If there is not the intent to commit a felony but rather a misdemeanor – G.L. c. 266, § 16A – Breaking and Entering with the Intent to Commit a Misdemeanor

If there is and entering at night with no breaking or a breaking and entering during the day but the homeowner is present and placed in fear – G.L. c. 266, § 17 – Entering in the Nighttime without Breaking or Breaking and Entering in the Daytime Placing the Owner in Fear.

If there is no breaking but and entering by use of false pretenses – G.L. c. 266, § 18A Entering by False Pretense Without Breaking With the Intent to Commit a Felony

What happens if I am arrested for breaking and entering?

If you are arrested for breaking and entering, you will be transported to the police station and processed. This will include fingerprints and photos. The police may attempt to question you about the charges. DO NOT answer any questions at all. Attempting to “talk your way out of it” is futile and you will likely provide information to the police that they may not otherwise obtain. A clerk magistrate will be contacted to set a bail and may be asked to make a determination of probable cause to charge you.

If you are not able to post a bail you will then be transported to the court to be arraigned. This will typically take place in the first instance in the district court. At the arraignment, you will be informed of the specific charges you are facing and will likely get preliminary reports of the facts supporting the charges. Next, you will be subject to a bail hearing at which the court will determine whether you must post a bail in order to remain free pending the outcome of the case and, if so, how much that bail will be. At the bail hearing, you may also be ordered by the court to abide by certain conditions of release including reporting to probation or wearing a monitoring bracelet. Depending on the charges, you will then be scheduled for either a pre-trial hearing or a “probable cause” hearing. It is critical that you immediately seek competent legal counsel to aid you in this process.

What are the penalties?

• Breaking and Entering in the Nighttime With the Intent to Commit a Felony: Up to 20 years in state prison or 2 ½ years in the house of correction.
• Breaking and Entering in the Daytime With the Intent to Commit a Felony: Up to 10 years in state prison or up to 2 years in the house of correction.
• Breaking and Entering with the Intent to Commit a Misdemeanor: Up to 6 months in the house of correction.
• Entering in the Nighttime without Breaking or Breaking and Entering in the Daytime Placing the Owner in Fear: Up to 10 years in state prison or up to 2 ½ years in the house of correction. If a gun is used then the sentence must be not less than 5 years in state prison.
• Entering by False Pretense Without Breaking With the Intent to Commit a Felony: Up to 10 years in state prison or up to 2 years in the house of correction.

What if a gun or weapon was used during the breaking and entering?

The use of a gun or weapon often exacerbates the potential penalties in a variety of criminal cases. Breaking and entering cases are no different. In cases of (1) entering without breaking at night or breaking and entering in the daytime where the owner is present or (2) entering a dwelling (home) without breaking at night or breaking and entering in the daytime whether or not the owner is present, the court imposes a minimum sentence of 5 years in state prison

Why you should hire a defense attorney:

Breaking and entering is a very serious offense. Almost all of the variations of breaking and entering are felonies that carry lengthy prison sentences and other long lasting implications. They are cases that involve many distinct legal issues that may have an effect on the charges. A proper legal defense includes immediate investigation and research by professionals with experience. Legal issues such as: what may be considered a “breaking”; what is legally “nighttime”; and whether one has the intent to commit a crime; must all be examined. Whether the government can even prove the identity of the offender must be analyzed.

The lawyers at Eisenstadt, Krippendorf & Galvin LLP have handled hundreds of breaking and entering cases and are skilled in analyzing and defending these cases.