Local news outlets reported a recent attempted burglary in Davis County involving a home that was occupied by a young family. Burglary is a serious felony crime that creates real risks for homeowners and residents. Knowing the law can help you understand what you can do to protect yourself and your family.
Burglary is often viewed as a property crime. It is often also drug-related.
Residential burglary is classified as a violent felony under Utah law for purposes of expungement eligibility. It is considered a “forcible felony” for purposes of self-defense law.
Elements of Residential Burglary
A charge of residential burglary requires proof that a person “entered or remained” unlawfully in a dwelling and that the person also had specific intent to commit a theft or assault (as either a felony or misdemeanor) or the intent to commit another felony crime.
Residential burglary by itself is a second-degree felony with a penalty of up to 15 years in prison. Reasoning behind the high potential for punishment relates to the risk that residents or occupants of the home are placed at real risk of being injured while the burglary is being committed.
Use of Force – Justification Defense in Criminal Cases
Utah law governing the use of force as a justification defense to criminal charges provides generally that an individual “does not have a duty to retreat” from force or threatened use of force against the individual or against another person. HOWEVER, this does NOT create an absolute right to “stand your ground.”
To support a justification defense, the use of force must be “reasonable” under the circumstances and must be in response to “the imminent use of unlawful force.”\
In determining imminence or reasonableness, a jury (or judge in a bench trial or justification hearing) may consider multiple factors:
- the nature of the danger;
- the immediacy of the danger;
- the probability that the unlawful force would result in death or serious bodily injury;
- the other individual’s prior violent acts or violent propensities (as known to the defendant));
- any patterns of abuse or violence in the parties’ relationship; and
- any other relevant factors.
Even though Utah law may not impose an affirmative duty to retreat in the face of force or threatened use of force, retreating is often the safest course of action. As a practical matter, you will be generally better off retreating and avoiding the use of force completely than you will be if you choose to “stand your ground” and then find yourself having to hire a lawyer to represent you as you try to justify your actions in a court of law.
Self-Defense and Defense of Others
Utah self-defense law provides that a person is “justified in threatening or using force” against another person “to the extent that the individual reasonably believes” that the such force or threatened use of force “is necessary to defend the individual or another individual against the imminent use of unlawful force.”
A different standard applies to self defense if potentially deadly force is involved. Use of force that is “intended or likely to cause death or serious bodily injury” is justified only if the individual reasonably believes that such force “is necessary to prevent death or serious bodily injury to the individual or another individual… or to prevent the commission of a forcible felony.” Utah Code section 76-2-402 defines “forcible felony” as including burglary for purposes of self-defense law.
Use of Force in Defense of Habitation
The use of ordinary (non-deadly) force in defending one’s home is generally judged under by whether the individual “reasonably believed that the force is necessary” to prevent another “individual’s unlawful entry into the actor’s vehicle or unlawful entry or attack upon the actor’s habitation or place of business or employment.” The use of potentially deadly force is more limited.
Force in Defense of Property
Deadly force is never justified under Utah law if used solely for the purpose of defending property. Life is considered more valuable than mere physical stuff.