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Aggressive. Experienced.

Chicago Criminal Defense Attorney
Former Cook County Felony Prosecutor

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Do You Have to Steal Something to Be Charged with Illinois Burglary?

Burglary is an oft-misunderstood crime.

Take the case of two 14-year-old boys in McHenry, Illinois. The juvenile suspects were arrested for the destruction of the former Just For Fun Roller Rink. The business had closed permanently in late 2020, and the boys started a fire in the empty rink. The flames quickly got out of hand.

One juvenile was charged with arson, burglary, and criminal damage to property, all felonies of varying classes. The other was charged with criminal trespass, a class B misdemeanor.

Why was one charged with burglary rather than trespassing? Clearly, no theft took place, since the building was vacant. How is that a burglary charge?

Keep reading to gain clarity on how Illinois law defines burglary.

Burglary in IL

Illinois requires two things to happen to constitute a burglary charge:

  • You enter or remain on another person’s property without permission.
  • You intend to commit a crime on that property.

There’s more to expand here, but this forms the basic divide between burglary and trespassing. Breaking into a property only counts as trespassing. If prosecutors want to pursue burglary, they must prove that you intended to or did commit another crime while trespassing.

More often than not, that crime is theft. That’s why any level of theft, from petty to felony, tends to form the second part of burglary.

For crimes that aren’t theft, they need to reach a felony-level to activate burglary charges.

Many special definitions and terms fall under the act of burglary. Let’s get into those next.

Buildings that Can Be Burgled

You may also wonder if burglary can only happen in a home or business. What makes something a property that can be trespassed? Does it matter if the business is vacant?

Illinois law states that burglary charges can be sought for trespassing the following types of properties:

  • Buildings
  • Aircrafts
  • Boats
  • Motor vehicles
  • House trailers
  • Trains
  • Schools
  • Places of worship

Most of these would evoke a Class 2 felony charge if prosecuted. The law denotes that the last two property types automatically carry more serious charges. Burglary on the premises of a school or place of worship bumps the felony up to Class 1.

, Do You Have to Steal Something to Be Charged with Illinois Burglary?What is Unlawful Entry?

As you can see from the properties list, the owner’s permission forms the sticking point of lawful versus unlawful entry.

According to Illinois law, “entry” occurs once any part of your body crosses the property line. It also extends this definition to any tool you might use to enter the building. For instance, if you break a window with a bat, you have unlawfully entered when that bat makes contact with the glass.

Breaking and entering don’t need to go hand in hand, though. If you walk through an unlocked door or crawl through an open window, you can still face charges of burglary.

Intent to Commit a Crime

How do prosecutors demonstrate an alleged burglar’s intention to commit theft or a felony? In many cases, lawyers can infer the intention by using the linear events of the crime.

Let’s take a common case of theft. It’s obvious that a person who steals while homeowners are away had to illegally enter the house to do it. Therefore, a jury can reasonably convict them of both burglary and theft.

What if that house has an alarm system, and the police arrive at the scene before the alleged burglars escape? Technically, they didn’t complete the crime of theft.

In many circumstances, enough incriminating evidence is present to prove intent: a broken window, possessions moved from their rightful places, perhaps even a get-away driver who can be apprehended and interrogated. Burglary charges could still stand.

For other felony crimes, the prosecution may need to jump through more hoops to show intent. They might lean on physical evidence, like abandoned matches, or circumstantial evidence, like fingerprints in key locations.

For more violent crimes, the evidence may lie in witness testimony.

Penalties for Burglary in IL

There are no misdemeanors for burglary. If you enter a space without permission and commit theft or another felony, you can expect a minimum felony charge.

, Do You Have to Steal Something to Be Charged with Illinois Burglary?

The charges range by the following standards:

  • Burglarizing without causing damage – Class 3 felony
  • Burglarizing, including property damage – Class 2 felony
  • Burglarizing a school, childcare facility, group daycare home, or place of worship – Class 1 Felony

In relation to these charges, you can expect fines of up to $25,000 and the corresponding penalties:

  • Class 3 felony – 2-5 years in prison
  • Class 2 felony – 3-7 years jail time
  • Class 1 felony – 4-15 years in prison


About the Author:

Andrew M. Weisberg is a former felony prosecutor who now serves as a defense attorney in the greater Chicago area. He has extensive experience in handling all types of criminal cases, from sex offenses and domestic violence to retail theft-related crimes, murder, and drug crimes. His work has been recognized by Avvo, Expertise, National Trial Lawyers, and others, and he has been featured on countless news outlets for his experience and knowledge in criminal law.

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