Which Is Worse: Criminal Trespass or Burglary?

Mar 31, 2021

Arizona’s criminal trespass and burglary statutes both prohibit “entering or remaining unlawfully” in or on residential or commercial property or a fenced-in yard. Essentially, the laws mean that if a person is not authorized to be on or in the property, and they gain entry by placing their hand, foot, or any other body parts or instruments in said property, they are committing a crime.Although one element of these two crimes is the same – “entering or remaining unlawfully” – the offenses are different. Burglary is considered a more severe offense than criminal trespass. In all instances, burglary is a felony, ranging from class 4 to 2. In contrast, criminal trespass is generally a misdemeanor. There are only a couple of situations when the offense is a felony.

In this blog, we will delve deeper into these two statutes to elaborate on what makes burglary worse than criminal trespass. To do that, we will look at the corresponding degrees of each offense, meaning that we will compare third-degree criminal trespass with third-degree burglary, and so on. We do this only for comparison’s sake, as third-degree crimes are considered lesser offenses. This method of comparison is not to suggest that third-degree criminal trespass and third-degree burglary (or first- or second-degree) are of the same severity. We are merely keeping the lesser crimes and more serious crimes together.

Third-Degree Criminal Trespass and Third-Degree Burglary

As mentioned before, in the trespass and burglary series of statutes, the third-degree offenses are the least serious.

Third-degree criminal trespass (A.R.S. 13-1502) occurs when someone unlawfully remains on property after being asked to leave or receiving notice that entry was prohibited. The offense is a class 3 misdemeanor punishable by up to 30 days in jail and/or up-to $500 in fines.

Third-degree burglary (A.R.S. 13-1506) also involves unlawful entry in or on property. However, it differs from criminal trespass of the same level in that the statute specifically refers to remaining or entering in or on a non-residential structure, fenced commercial or residential yard, or motor vehicle. Conversely, criminal trespass involves entry into or on real property.

Another element distinguishing third-degree burglary from third-degree criminal trespass is the actor’s intent for entering the structure. For a person to be charged with burglary, as opposed to criminal trespass, they must have entered “with the intent to commit any theft or felony.”

Third-degree burglary is a class 4 felony. The maximum prison sentence is 3 years. However, if any aggravating factors were present, a judge can impose a 3.75-year term.

Second-Degree Criminal Trespass and Second-Degree Burglary

The second-degree criminal trespass statute (A.R.S. 13-1503) prohibits a person from entering or remaining in a non-residential structure or fenced-in commercial yard. In terms of the location in which the offense occurs, this is more similar to third-degree burglary.

Second-degree criminal trespass is a class 2 misdemeanor. A conviction is punishable by up to 4 months in jail and/or up-to $750 in fines.

Second-degree burglary (A.R.S. 13-1507) occurs when someone unlawfully or remains in a residential structure. Additionally, the alleged offender must have done so to commit a felony or theft. Thus, as with third-degree criminal trespass and burglary, it is not only the location that differentiates the crimes but also the purpose for committing them.

Second-degree burglary is a class 3 felony, punishable by up to 8.75 years in prison (if aggravating factors are present).

First-Degree Criminal Trespass and First-Degree Burglary

In the series of criminal trespass and burglary statutes, first-degree offenses are the most serious and carry the heaviest penalties.

There are six different instances in which a person can be charged with first-degree criminal trespass (A.R.S. 13-1504). They include unlawfully entering or remaining in or on:

  • A residential structure
  • A fenced-in residential yard
  • A residential yard to invade the occupants’ right to privacy
  • Real property with a mineral claim
  • Another’s property and desecrating religious symbols or property
  • A critical public service facility

First-degree criminal trespass can either be a class 1 misdemeanor or class 5 or 6 felony. The level of charge is tied to the specific conduct involved in the offense.

If a person is convicted of a class 1 misdemeanor, they can be jailed for up to 6 months. A class 6 felony is punishable by up to 2 years. And a class 5 felony carries a prison sentence of up to 2.5 years (if aggravating circumstances are present).

First-degree burglary (A.R.S. 13-1508) involves unlawfully entering a structure with an explosive, deadly weapon, or dangerous instrument. As with the previously mentioned burglary offenses, the alleged offender must have intended to commit theft or felony while in or on the property.

If the crime occurred in a non-residential structure, it is a class 3 felony, which is penalized by up to 8.75 years in prison. If it happened in a residential structure, it is a class 2 felony, and a conviction can lead to imprisonment for up to 12.5 years.

Burglary and criminal trespass are both serious crimes, but because the former involves the intent to commit theft or a felony, it is more severe. Regardless, being accused of either can profoundly affect a person’s life, especially if they are found guilty. That is why, if you have been charged, it is essential to speak with a criminal defense lawyer about your case.

At Oliverson & Huss Law PLLC, our Tempe team is ready to fight aggressively for you and seek a favorable outcome on your behalf. Schedule a free case review by contacting us at (480) 616-8229.


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