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What is the Difference Between Trespassing and Breaking and Entering in Michigan?


man with crowbar breaking and entering into a business

Trespassing and Breaking and Entering are both property-related crimes. As will be explained below, the main difference between the two is the involvement of a structure like a house or building. Breaking and Entering also require a specific intent where Trespassing does not. Also more fully explained, Home Invasion is a specific type of Breaking and Entering for which Michigan law enforcement creates different degrees. There is also the offense of simply Occupying a Dwelling without Consent and Entering without the owner’s permission. We will also discuss the different criminal record penalties for each offense as well as common criminal law defense strategies to fight them.

What is Considered Breaking and Entering in Michigan?

Breaking and entering means a person is accused of actually breaking into a building. It does not matter whether anything was actually “broken.” For example, opening a partially open door or window is enough to establish the breaking. Also, the type of building can vary which can include a structure, boat, shipping container, railroad car, tent, hotel office, store, barn, factory, or warehouse.

Breaking and entering is a specific intent crime which means that to find a person guilty, they must have had a specific intent to both break and enter. If a person did it accidentally, they are not guilty. The prosecution must prove that the person specifically intended to both break and enter that building. It is also necessary for the prosecution to prove that the accused actually entered the building. It doesn’t matter whether the accused actually got their entire body inside the building, rather if the accused put any part of their body into the building after the breaking, that is enough to establish the actual entry.

It does not matter whether the building was occupied, and is often unoccupied when charged with this offense alone (as opposed to Breaking and entering of an Occupied Dwelling explained below). Breaking and entering is a felony punishable by imprisonment for not more than 10 years. That does not mean someone will go to prison for 10 years, but it is a very serious offense. For sentencing guideline purposes, it is a crime against property MCL class D offense. It is very serious and generally will be sentenced harshly.

Michigan penal code and state law creates a separate offense for breaking and entry into an occupied building where the prosecution must prove that the building involved was occupied as a residence at the time of the breaking and entering. It does not matter whether the people who lived there were home at the time. This is also a felony, punishable by imprisonment of not more than 10 years. For sentencing guideline purposes, it is a crime against property class D offense.

A commonly used lesser included offense of breaking and entering, is entering a building without breaking, which is a felony with not more than five years of imprisonment. This may be raised if the evidence shows that the accused did not use force to enter the property. For example, if they entered through and already open door or window. Another lesser included offense is a misdemeanor called entry without the owner’s permission. This may be applicable where the evidence of the accused’s intent to commit a crime therein is in dispute. It is often raised if there is evidence that the accused entered without the owner’s permission but did not intend to commit a larceny or other felony inside.

A more serious subsection of breaking and entering is called home invasion. They are three different degrees. Home invasion first-degree accuses a defendant of breaking into a dwelling at a time that the defendant had use of force intent to commit a crime inside. Additionally, it must be proved that while the accused entered, was present in or was leaving the dwelling, they committed another felony offense like larceny in a building (LIB). Home invasion first- degree also requires that when the defendant was present in, or was leaving the dwelling that they were armed with a dangerous weapon, and another person was lawfully present in the building. Home invasion is also a specific intent crime, punishable by up to 20 years in prison. For sentencing guideline purposes, it is a crime against a person class B offense. Those convicted of home invasion first-degree almost always are sentenced to state prison.

Home invasion second-degree is defined when a person breaks into private property; a home or building, and enters that building with the intent to commit a felony they are in. The actual felony offense does not actually have to be committed. So, if someone broke into and entered a home, whether occupied or not, but did not actually steal something or do any crime, but had the intention to do so, they may be convicted of home invasion second-degree. Obviously, then home invasion is also a second-degree is also a specific intent crime. It is punishable by a maximum of 15 years in prison, and for sentencing guideline purposes, it is a crime against person class C offense.

A person is guilty of home invasion third degree when they break and enter a dwelling, and at the time of the breaking, and entering, the defendant intended to commit a misdemeanor. Or that, when the defendant entered, was present, or was leaving the dwelling, they committed a misdemeanor. As an example, assault is a misdemeanor. Therefore, if a person breaks and enters with the intent to assault somebody inside without a dangerous weapon, they are guilty of home invasion third degree. That is a felony, punishable by a present for not more than five years. For sentencing guideline purposes, it is a crime against person class E offense.

There is a second type of home invasion third-degree involving the violation of an order of probation, parole, bond, pretrial release, or personal protection order. If a person broke and entered a dwelling, and when that person entered was present in, or was leaving the dwelling, they violated a term or condition of a PPO or probation to protect a named person, they are guilty of home invasion third degree. For example, if a person had a PPO, which ordered that person to have no contact with another named party. And the accused broke and entered the dwelling home of that name to party, even in situations where the named party was not home, that person is guilty of third degree, which is a felony, punishable by imprisonment of not more than five years. For sentencing guideline purposes, it is a crime against person class E offense.

Home invasion third degree, when there is a violation of a court order, does not require specific intent. The prosecution must only show that the defendant entered without permission and violated the PPO. On the other hand, the prosecution must show that the defendant knowingly violated a term or condition of proration parole or a PPO. The difference is while they may not have specifically intended to violate it once they did, they knew it was a violation.

What Are the Trespassing Laws in Michigan?

Trespassing simply means entering a person’s property without permission. For a person to be found guilty of trespassing, the prosecutor must prove all the following elements, beyond a reasonable doubt. First, that the owner of the property told the offender that they could not come onto the property. Second, that the defendant entered private property after being forbidden to do so. It is also trespassing if an accused was on property, owned, or occupied by another person, and that other person told the accused that they must leave the property. If that person then remains on the property after being directed to leave, and they had no legal authority to remain on the property they are guilty of trespassing.

There are many ways of being told to remain off a property owner’s property. For instance, if the property was fenced or posted “no trespassing”, which forbids entry on the property, a person enters the property anyway without having obtain permission, is guilty of trespassing.

There is a specific subsection of trespassing where a person who trespasses on property owned by another with the intent or subject, the owner of that person of that property to eavesdropping or surveillance.

There is also something in Michigan law called “recreational trespass”, where a person is on a property that has been fenced or posted expecting a fisherman, wading, or floating on navigable public stream. A person can be guilty of recreational trespass when entering a property within clearly defined banks of the stream or, as closely proximate to the clearly defined bank for purposes of fishing or gaming. Recreational trespass is also a misdemeanor punishable by not more than 90 days in jail. If that individual kills any protected animal game or fish while violating recreational trespass, the fines are increased to not more than $750. If it’s a second or subsequent offense occurring within three years of the previous violation the fine is increased to a maximum thousand dollars and the court shall order that the individuals hunting license be revoked.

As a disclaimer, a person convicted of trespassing will be guilty of a misdemeanor, punishable by jail of no more than 93 days.

What is the Difference Between Trespassing and Breaking and Entering in Michigan?

The difference between trespassing and breaking and entering is the existence of the dwelling or a building. Breaking and entering requires a building to be entered. It also requires moving something, the “breaking”, to enter the building. It doesn’t require a full entry of the building just a body part may be enough. Similarly, it does not require that the building entry must be broken, meaning a window or door does not have to be “broken.” Simply opening a door is enough to qualify.

Trespass, on the other hand, simply means entering onto somebody’s property. This differs from vandalism, as vandalism is the willful destruction or damaging of property in a manner that defaces, mars, or otherwise physically blemishes and diminishes the property’s value.

That property may or may not have a building on the property, and the trespasser does not enter that building. Trespassing also requires that the accused enter that property without permission after being told. A posted sign is enough to be advised that they don’t have permission to enter

bright yellow no trespassing sign

Can Someone Be Found to Be Trespassing on Public Property in Michigan?

It is possible for someone to be found to be trespassing on public property in Michigan. For instance, if someone was told by a court order that they were no longer permitted to enter onto that public property. They can be trespassing. In fact, they could be found guilty of home invasion in the third degree if, in fact, the person broke and entered onto the public property in violation of a PPO order of probation or court order.

A public property could be a park, government building, or courthouse. It is common that a defendant is ordered not to be near a victim of a crime they previously committed. If that victim was in a park, and the defendant entered that park, they could be guilty of unlawful trespassing and a violation of the court order.

Does Michigan Have Purple Paint Laws?

A purple paint law prohibits a person from engaging in recreational trespass for the purpose of trapping, fishing, or hunting if the property were posted against entry with purple paint marks on trees or posts around the property. The property would usually be farm or a wooded area connected to a farm property.

Michigan does not currently have a Purple Paint Law. A bill to make this law was introduced into the Michigan Senate in 2021. It passed the Senate but died in the Michigan House of Representatives later that year.

What Are the Charges for Breaking and Entering in Michigan?

The penalties for breaking and entering or home invasion are quite severe. The reason is the potential for harming another person is greater and Michigan law highly values the protection of property owners. Therefore, home invasion first degree is a 20-year felony charge and a class B offense. A very high majority of those convicted of a home invasion first-degree go to prison for a minimum of one year and often multiple years.

The unlawful characteristics of the offense will also dictate the severity of the sentence. For instance, if there was the use of a weapon that was discharged at, or toward another human being, or if a person was cut, or stabbed with a knife, the sentencing guidelines, will be much higher. Similarly, if the accused was in possession of any type of incendiary device, an explosive device or a fully automatic weapon, pistol, rifle, shotgun or other potentially lethal weapon, the sentence will be more severe. Of course, if there was any physical injury to a victim, including death, or life-threatening, permanent, or incapacitating injury, or bodily injury, requiring medical treatment, the penalties will be more severe.

Sentencing guidelines will increase when there is serious, psychological injury, or to the victim, or to a member of the victim’s family. There could also be higher guidelines if the offender had the intent to injure or kill another individual, or to do great bodily harm to that individual. The greater the number of victims will increase the number of victims that were placed in danger of injury or loss of life will increase the guidelines. Lastly, the exploitation of a vulnerable or taking advantage of a vulnerable victim that suffers a physical disability, mental disability, or simply because of their use their youth or domestic relationship with the offender. Or the offender, abused his authority status like, perhaps a babysitter, or caretaker. Vulnerable victim could also be someone who because of his difference in size or strength can be exploited, or who was intoxicated under the influence of drugs, was asleep or unconscious.

The dollar value of any personal property destroyed committed during the offense will also be taken into consideration, and whether there was a wanton or malicious damage that occurred beyond what was necessary to commit the crime. Lastly, if the offender showed a wanton and a reckless disregard for the life or property of another there will be higher sentencing guidelines.

There are other aggravating sentencing considerations when it comes to acts of terrorism. For instance, if the offender committed an act of terrorism by using or threatening, a harmful biological substance device, chemical substance or incendiary device or explosive device the guidelines will be very high.

How to Beat a Breaking and Entering Charge in Michigan

Common defenses to breaking and entering include a claim of right to be on the property, or inducement to be on the property or lack of intent. Also, mere presence in the building is not sufficient because there is a requirement of specific intent. There could be an alibi or lack of presence, and certainly lack of identification may be a good defense.

For purposes of the home invasion charge, there cannot be a breaking if the accused had the right to enter the building.

If a person is accused of breaking, an entering third degree in violation of a personal protection order, it is necessary that the defendant must have been given actual notice of the no contact provision. In many cases of PPO is issued but not actually served, and therefore, the defendant may not have had the notice necessary, to commit the offense of Hamid vision third- degree.

The way to beat a breaking and entering charge, unauthorized entry, or home invasion is like many other criminal charges. A full factual investigation is very important which should include visiting the scene of the crime, interviewing witnesses, and understanding the story of the accused, not simply using the police report because that is the victim’s story is the prosecutor’s story. The way to beat these cases is to be smarter about the facts of the case, which requires a thorough factual investigation.

What Are the Charges For Trespassing in Michigan?

Trespassing is a misdemeanor punishable by up to 93 days in county jail. There are no sentencing guidelines for misdemeanors, and a sentencing judge has a lot of discretion. But it’s very rare for someone to serve a jail sentence for trespass. On the other hand, it is possible, if there have been repeated occurrences. It is often met with only a fine, but when a judge believes, there may be a repeated offenses or feels as though the victim needs to be protected, a probationary period may be ordered.

Is Criminal Trespassing a Felony in Michigan?

Trespassing is a misdemeanor, but it can be raised to a felony in situations where there is a breaking in entering or where there is a violation of a court order like a PPO or order of probation.

How to Beat a Trespassing Charge in Michigan

There is a good defense to the charge of trespassing where the accused was a process server, attempting to serve legal documents on the owner occupant or lessee of the property. A good defense can also be established if there is some evidence that the accused had a legal right to be on the premises. This could happen when they were told, or recently notified that they were invited onto the property. A strong attorney-client relationship is very important.

man holding hand cuffs and getting out of jail

How a Michigan Property Crime Lawyer Can HelpOur criminal defense team at the Law Office of Barton Morris is trained and committed to achieve success for our clients. This includes performing the work to discover our client’s story, providing legal advice, and not rely upon the prosecution. Performing a thorough independent investigation followed by applying a skilled understanding of Michigan property crime law will result in a comprehensive defense strategy. Our firm then executes that strategy to fight for optimal results for each of our clients.

In a Bad Spot? Let Barton Morris Help You Out

Barton Morris and his criminal defense attorneys have been recognized in multiple publications as outstanding in the fields of criminal defense and DUI, including Super Lawyer’s Magazine, and Dbusiness Magazine. Also, Barton Morris is the only defense lawyer in the State of Michigan certified by the American Chemical Society as a Forensic Lawyer-Scientist. We help good people who make criminal mistakes fight for favorable results in court. Contact us today for a free consultation!

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