Interviewer: How is the burglary of a commercial property or a business different from burglary of a dwelling?
Stuart: The law, as I said, views your house as your castle. They give you much greater protection there. A building does not have that protection. Instead of being a “C” felony, it is a lower degree of felony which is a “D” felony. It is a “D” non-violent felony, even if somebody is present.
There could be the night watchman there or somebody there when you break in. However, because it is a building it is non-violent by definition. That is unless other factors happen. For example, you bring a gun and something happens.
Therefore, on a “D” non-violent felony, by definition your minimum goes down to probation. From what was a 3-1/2 year sentence, you can now get probation.
Interviewer: What are some examples of these two types of burglaries? On the commercial or building side, what are the circumstances?
Stuart: Well, a lot of times you simply see a lot of burglaries of garages. The question arises whether that garage upgrades into the dwelling, by being an attached garage. The other caveat is that it could have an apartment attached to it. That becomes a dwelling.
The other thing we usually see is just stores in general. Somebody breaks into a warehouse, even a dairy barn or something like that. It makes kind of an easy target to smash and grab a lot of it.
Interviewer: How do you defend these cases? What elements can you commonly bring up to mitigate the charges against somebody?
Stuart: First, we try to look at why the crime happened. For example, is this a crime by somebody who has a drug problem? Therefore, the best scenario is not to incarcerate the person; but maybe the drug program even though it is not a drug charge. What is the underlying reason for the theft?
Second, we look at the nature of the crime, meaning the elements of the crime. If it is charged as a dwelling, did they charge it correctly? We had a case a little while ago where they charged a client with breaking into a dwelling. They charged him that way because there was an apartment above a garage.
The problem with that was the apartment was not yet set up. There was no heat and there was no hot water. There was nothing that made it habitable at the time.
Because it was uninhabitable, we got the case which started out as a “C” violent to go down to a “D” non-violent.
The nature of the charges is the next thing we look at. That is the nature of the proof; meaning the district attorney still has to prove that it was you that went in there in regards to the crime. He still has to prove that you went in there with the intent to commit a crime; so it’s not a trespass and is an actual burglary.
Those are some things, as I said, that really change the nature of the crime. A good investigation and good interview process with the client helps to determine where that case will eventually end up going.