Burglary & Breaking and Entering in Oklahoma – Law & Punishments

Oklahoma breaks burglary down into Burglary in the First Degree, Second Degree, and Third Degree. There are also burglary charges that are specific to the nature of the burglary such as burglary of a controlled dangerous substance and burglary with explosives. Breaking an entering, possession of implements of burglary, and entering with the intent to commit a felony, are misdemeanor charges that are related to the crime of burglary. 

Burglary in the First Degree

charged with burglary in oklahomaBurglary in the First Degree is the breaking into and the entering the dwelling house of another, in which there is at the time some human being, with intent to commit some crime inside of the house, by either:

  1. forcibly bursting or breaking the wall, or an outer door, window, or shutter of a window of such house or the lock or bolts of such door, or the fastening of such window or shutter;
  2. breaking in any other manner, being armed with a dangerous weapon or being assisted or aided by one or more confederates then actually present; or
  3. unlocking an outer door by means of false keys or by picking the lock thereof, or by lifting a latch or opening a window.

“Dwelling house” includes every house or edifice, any part of which has usually been occupied by any person lodging therein at night, and any structure joined to and immediately connected with such a house or edifice. “Dwelling” includes every house, trailer, vessel, apartment or other premises, any part of which has usually been occupied by a person lodging therein at night and any structure joined to and immediately connected with such house, trailer or apartment. “Night time” includes the period between sunset and sunrise. The range of punishment in the Department of Corrections is 7-20 years. This is considered a violent crime and is an 85% crime.

Burglary in the Second Degree

Burglary in the Second degree is the breaking and entering the dwelling house of another, in which there is at the time no human being present, or any commercial building or any part of any building, room, booth, tent, railroad car or other structure or erection in which any property is kept or breaking into or forcibly opening, any coin operated or vending machine or device with intent to steal any property inside of it or to commit any felony. The maximum punishment in the Department of Corrections is seven years.

Burglary in the Third Degree

Burglary in the Third Degree is the breaking and entering of any automobile, truck, trailer, or vessel of another, in which any property is kept, with intent to steal any property inside of it or to commit any felony. The maximum punishment in the Department of Corrections is five years.

Possession of Certain Tools After Burglary Conviction

It’s a felony for any person who’s been previously convicted of burglary to have in his or her possession, custody, or concealed about his or person, or transport or cause to be transported, any combination of three or more of the following tools:
  • sledge hammer,
  • pry bar,
  • punches,
  • chisel, or
  • bolt cutters
with the intent to use or employ, or allow the same to be used or employed, in the commission of a crime, or knowing that the tools are to be used in the commission of a crime.

The maximum punishment in the Department of Corrections is two years. The maximum fine is $1,000.

Specific Burglary Crimes

Burglary With Explosives

It’s a felony to enter any building, railway car, vehicle, or structure and there open or attempt to open any vault, safe, or receptacle used or kept for the secure keeping of money, securities, books of accounts, or other valuable property, papers or documents, without the consent of the owner, by the use of or aid of dynamite, nitroglycerine, gunpowder, or other explosives, or enter any such building, railway car, vehicle, or structure in which is kept any vault, safe, or other receptacle for the safe keeping of money or other valuable property, papers, books, or documents, with intent and without the consent of the owner, to open or crack such vault, safe or receptacle by the aid or use of any explosive. The range of punishment in the Department of Corrections is 20-50 years.

Burglary of a Controlled Dangerous Substance

Burglary of a controlled dangerous substance is a felony. The maximum punishment in the Department of Corrections is ten years. A second or subsequent conviction is not eligible for probation.

Misdemeanor Burglary-Related Crimes

It is possible to be convicted for some crimes that are similar to, but fall short of, burglary. These are Possession of Implements of Burglary, Entering With the Intent to Commit a Felony, and Breaking and Entering Without Permission.

Possession of Implements of Burglary

It’s a misdemeanor to, under circumstances not amounting to a felony, have in your possession any dangerous offensive weapon or instrument whatever, or any pick-lock, crow, key, bit, jack, jimmy, nippers, pick, betty, or other implement of burglary, with intent to break and enter any building or part of any building, booth, tent, railroad car, vessel, or other structure or erection and to commit any felony inside of it. The maximum punishment in jail is one year. The maximum fine is $500.

Entering With The Intent To Commit A Felony

It is illegal to, under circumstances not amounting to any burglary, enter any building or part of any building, booth, tent, warehouse, railroad car, vessel, or other structure or erection with intent to commit any felony, larceny, or malicious mischief. The maximum punishment in jail is one year. The maximum fine is $500.

Breaking And Entering in Oklahoma Without Permission

It is illegal to, without the intention to commit any crime therein, willfully and intentionally break and enter into any building, trailer, vessel or other premises used as a dwelling without the permission of the owner or occupant thereof, except in the cases and manner allowed by law. The maximum punishment in jail is one year. The maximum fine is $500.

Effect of an Injury During the Commission of a Burglary

If there is an injury during the commission of a burglary or robbery, then the individual who caused the injury will pick up additional charges related to that injury. These can include Assault & Battery, Assault and Battery With a Dangerous or Deadly Weapon, or even Murder. These results can provide circumstantial evidence that the person intended to commit a crime inside, which would increase the chances of being found guilty of burglary. Somebody who burglarizes a house and injures somebody inside will likely be charged with both burglary and the crime related to the injury that the victim sustained.

How Intent Affects Burglary Charges

Intent is a very important element in a burglary charge because burglary is a specific intent crime. There are a couple of things to keep in mind here. First, the individual accused of burglary must have intended to commit a crime inside the structure prior to entering it. Somebody should not be found guilty who broke into a building then subsequently decided to commit a crime. The intent to commit a crime has to be formed prior to the breaking and entering.

Being a specific intent crime, the mental state element can be negated through both voluntary and involuntary intoxication defenses. In order to use the defense of voluntary intoxication, the individual has to be so intoxicated that they could not have formed the required intent to commit a crime prior to breaking and entering. Of course, the same applies to involuntary intoxication. However, voluntary intoxication is not a defense for committing a crime. It can only bring down the charge to a lesser-included offense that does not require a mental state of intent to commit a crime. So, if somebody in Oklahoma is so intoxicated that they could not form the intent to commit a crime prior to entering the building, the person could still be held liable for Breaking and Entering Without Permission, which is covered in 21 O.S. § 1438.

A burglary conviction should not result if the person willfully and intentionally broke into and entered a building without the owner’s or occupant’s permission but without the intent to commit a crime inside. For example, a person breaks into a house just to go to sleep. There is no intent to commit a crime inside, so that person should not be found guilty of burglary. On the other hand, somebody who does have the intent to commit a crime inside yet does not actually commit a crime inside can still be found guilty of burglary. The facts surrounding the situation are going to dictate what the person’s intent was. For example, if a person broke into a house and actually committed a crime inside, then it appears more likely that the person had the intent to commit a crime before they entered that house. If the person is found with implements of burglary, they are carrying a dangerous weapon, or they approach the victims in a threatening way, then that can also be evidence that they intended to commit a crime prior to entering the building.

Burglary Defense Strategy

The first step is to look at the elements of the crime. There is a mental state and an act that must be performed. The mental state of intending to commit some crime inside must occur prior to the breaking and entering. The evidence has to be examined to determine if the prosecutor can prove beyond a reasonable doubt that the defendant intended to commit a crime inside prior to entering and if the defendant had the mental capacity to form that specific intent to commit the crime. Next, look at whether the wall, outer door, window, or shutter was forcibly opened. The defendant must have then entered somehow by breaking the plane of the door, window, shutter, etc. Other defense strategies include:

  • Didn’t do it
  • Lack of evidence
  • Had the permission of the owner/occupier of the place you entered
  • Thought you had the permission of the owner/occupier of the place you entered
  • Intoxicated
  • Entrapment
  • Didn’t have the intent to commit a crime inside
  • The place entered doesn’t meet the statutory definition of the place required to be entered
  • Mistaken identification
  • Coercion
  • Duress

Sources: 21 O.S. § 1431, 21 O.S. § 1435, 21 O.S. § 1436, 21 O.S. § 1437, 21 O.S. § 1438, 21 O.S. § 1439, 21 O.S. § 1440, 21 O.S. § 1442, 21 O.S. § 10, 21 O.S. § 9, 63 O.S. § 2-403, 21 O.S. § 1441, OUJI-CR 8-36, OUJI-CR 8-37, & OUJI-CR 8-38

Current as of March 23, 2020. Laws are subject to change at any time! Go to the sources cited above for the most up-to-date law.

Charged with burglary in Oklahoma? Call Oklahoma burglary lawyer Frank Urbanic in OKC for a free case consultation.

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