What is Burglary in the Third Degree in Arizona?
A.R.S. § 13-1506 is the Arizona law that criminalizes third-degree burglary. Burglary, or “breaking and entering,” occurs when a person enters of remains unlawfully in a commercial structure, such as a warehouse or retail store, with the intent to steal or commit another felony.
Burglary in Arizona is divided into first– second– and third-degree burglary. This article discussed third degree burglary. Even though this is least serious form of burglary, it is still a very serious crime, and is charged as a class 4 felony. It is different from the more serious forms of burglary because it does not involve either breaking into a home or using a deadly weapon during the commission of the crime. As with other forms of burglary, it is common for this to be charged along with possession of burglary tools.
A.R.S. § 13-1506 Defined
Under Arizona’s theft laws, a person commits burglary in the third degree by
- Entering or remaining unlawfully in or on a nonresidential structure or in a fenced commercial or residential yard with the intent to commit any theft or any felony therein.
- Making entry into any part of a motor vehicle by means of a manipulation key or master key, with the intent to commit any theft or felony in the motor vehicle.
Burglary in the third degree is a class 4 felony.
Important Definitions to Understand Third-Degree Burglary
While the definition for burglary may seem straightforward, Arizona’s burglary statutes actually have some very specific definitions for terms that can expand the definition of “burglary” beyond the usual “breaking and entering” that the word brings to mind. Under these definitions, even a Salvation Army collection box can be considered a non-residential structure, and stealing from it can constitute a burglary. See State v. Mann, 129 Ariz. 24, 25 (Ariz. Ct. App. 1981)
- Structure: Under ARS 13-1501, a structure is any device that accepts electronic or physical currency and that is used to conduct commercial transactions, any vending machine or any building, object, vehicle, railroad car or place with sides and a floor that is separately securable from any other structure attached to it and that is used for lodging, business, transportation, recreation or storage.
- Nonresidential Structure: Any structure other than a residential structure and includes a retail establishment. This has been found to include any of the following: Commercial structures, cars, a salvation army collections box, an unfinished log cabin, and a filing cabinet.
- “Enter or Remain Unlawfully”: An act of a person who enters or remains on premises when the person’s intent for so entering or remaining is not licensed, authorized or otherwise privileged except when the entry is to commit theft of merchandise displayed for sale during normal business hours, when the premises are open to the public and when the person does not enter any unauthorized areas of the premises.
- Entry: The intrusion of any part of any instrument or any part of a person’s body inside the external boundaries of a structure or unit of real property.
- Fenced Commercial Yard: A unit of real property that is surrounded completely by fences, walls, buildings or similar barriers, or any combination of fences, walls, buildings or similar barriers, and that is zoned for business operations or where livestock, produce or other commercial items are located.
- Fenced Residential Yard: A unit of real property that immediately surrounds or is adjacent to a residential structure and that is enclosed by a fence, wall, building or similar barrier or any combination of fences, walls, buildings or similar barriers.
- Master Key: A key that operates all the keyed locks or cylinders in a similar type or group of locks.
- Manipulate Key: A key, device or instrument, other than a key that is designed to operate a specific lock, that can be variably positioned and manipulated in a vehicle keyway to operate a lock or cylinder, including a wiggle key, jiggle key or rocker key.
Penalties for Burglary in the Third Degree
The potential penalties for third-degree depend on the number of prior convictions that the defendant has.
For a class 4 felony, the penalties are:
- No priors: Probation eligible, or 1 to 3.75 years in prison
- One felony prior: 2.25 to 7.5 years in prison
- Two or more felony priors: 6 to 15 years in prison
Defenses to Burglary in the Third Degree
- No “unlawful entry”: Burglary in the third degree requires the state to show that the defendant “entered or remained unlawfully” at the non-residential structure or fenced yard when the entering is not licensed or otherwise privileged. If the defendant has a reason to be on the property aside from committing a theft or felony, but then later decides to commit a theft, then the state has not satisfied its burden of proven unlawful entry. The defendant may face a theft charge or a charge for the underlying felony, but the intent element for burglary is lacking. The definition unlawful entry also carves out an exception for a person that steals merchandise from a store during business hours. This may be shoplifting or theft, but it is not burglary.
- Not a “Fenced Yard”: Burglary has specific definitions for what qualifies as a fenced commercial or residential yard. If a non-fenced yard is entered by the defendant to commit a theft, this may qualify as simple theft, but it is not a burglary. Depending on the value of the item stolen, this can drop down the theft charges to a misdemeanor.
Example: There is a front yard adjacent to a residential home that has a pink flamingo statute on the front lawn. The defendant steps onto the front yard with the intent to steal the pink flamingo. The defendant at most has likely committed a misdemeanor theft given the fact that the pink flamingo would be less than $1000 in value (the threshold which takes a theft from a misdemeanor to a felony).
How Salwin Law Can Help You
If you’ve been charged with burglary in the third degree, a skilled criminal defense attorney at the Salwin Law Group can help you with your case today. Stewart Salwin provides free consultations on criminal charges. Call today to see how we can help you get the best possible defense to your charges.