Breaking and entering (B&E) is one of the more common property-related offenses in Massachusetts, but not all B&E charges are treated equally. Depending on the intent, location, and time of day, a B&E charge can range from a minor misdemeanor to a major felony punishable by decades in prison. Understanding how the Commonwealth classifies these charges is essential to building a defense and protecting your record.
What Is Considered Breaking and Entering?
Under Massachusetts General Laws Chapter 266, Sections 16-18, breaking and entering occurs when someone unlawfully enters a building, vehicle, or vessel, with or without force, and with the intent to commit a crime inside. The “breaking” element can include even minimal force, such as pushing open a door or window.
The key factor in distinguishing between a felony and a misdemeanor B&E charge is intent—what prosecutors allege the defendant planned to do once inside.
When Breaking and Entering Is a Felony
Most B&E charges in Massachusetts are felonies. A B&E is considered a felony when the person enters with the intent to commit a felony inside, such as larceny, assault, or destruction of property.
There are several felony-level variations:
- Nighttime B&E with intent to commit a felony – punishable by up to 20 years in state prison (G.L. c. 266, §16).
- Daytime B&E with intent to commit a felony and placing someone in fear – punishable by up to 10 years in state prison (G.L. c. 266, §17).
- B&E without putting anyone in fear – punishable by up to 10 years in state prison or 2 years in jail (G.L. c. 266, §18).
The law treats nighttime entries and entries into dwellings or occupied buildings more harshly due to the risk of personal harm.
When Breaking and Entering Is a Misdemeanor
Massachusetts law creates a separate, lesser offense for B&E with intent to commit a misdemeanor under G.L. c. 266, §16A. This version applies when the accused entered with the intention of committing a minor offense (such as simple assault or malicious mischief) rather than a felony.
A conviction under this section carries a penalty of up to six months in jail, a fine of $200, or both. While the penalties are lighter, a misdemeanor B&E still creates a criminal record and can have long-term consequences for employment or housing.
Trespassing vs. Breaking and Entering
If the prosecution cannot prove criminal intent at the time of entry, the offense may instead be charged as trespass (G.L. c. 266, §120). Trespassing involves entering or remaining on property after being forbidden, but without intent to commit another crime. This distinction often becomes critical in reducing or dismissing B&E charges.
Key Factors in Determining the Charge
- Intent at Entry – Whether the defendant intended to commit a felony or misdemeanor once inside.
- Time of Day – Nighttime B&E is considered more serious and often carries enhanced penalties.
- Location – Entering a home or occupied dwelling carries far greater penalties than entering a shed, vehicle, or commercial property.
- Fear or Confrontation – If the entry caused a person to be placed “in fear,” higher-level felony charges may apply.
Possible Defenses to Breaking and Entering
- Lack of Intent: The Commonwealth must prove intent to commit a crime at the time of entry.
- Consent or Mistake: Entering property with permission, or by mistake, is not a crime.
- No Breaking or Entry: The evidence may fail to show actual entry or breaking.
- Misidentification: Eyewitness or surveillance evidence may be unreliable.
- Reduction to Trespass: Even if entry occurred, proving no criminal intent can reduce a felony B&E to trespassing.
Conclusion
In Massachusetts, whether a breaking and entering charge is a felony or misdemeanor depends on intent, timing, and location. Most cases are felonies, but those involving only minor intent may be misdemeanors—or even reduced to trespassing. Because the difference often hinges on subtle factual and legal distinctions, early legal representation is critical.
If you’ve been charged with breaking and entering, contact a qualified Boston criminal defense attorney immediately to review the evidence, assess intent, and protect your rights from the start.
Frequently Asked Questions (FAQ)
Is every breaking and entering automatically a felony?
No. B&E is a felony only when the defendant intended to commit a felony inside. If the intent was to commit a misdemeanor, it’s a misdemeanor B&E under G.L. c. 266, §16A.
Does it matter if it’s day or night?
Yes. Massachusetts law treats nighttime B&E more severely, reflecting the increased danger to occupants.
What if nothing was stolen?
Theft isn’t required. The key question is what the person intended to do upon entering.
Can a B&E be reduced to trespass?
Yes. If prosecutors cannot prove intent to commit a crime inside, a B&E charge may be reduced to trespassing, which carries far lighter penalties.
What are the maximum penalties for felony B&E?
Depending on the section, felony B&E can lead to 10 to 20 years in state prison, or up to 2.5 years in jail if sentenced locally.
