Burglary Crimes in Colorado: Class, Penalty, and Defenses To Those Crimes

By H. Michael Steinberg

Introduction:

Most people picture burglary as a masked intruder smashing a window at night. Colorado law is far broader. You can be charged with burglary without breaking anything, without taking anything, and sometimes without ever intending to hurt anyone.

And the penalties swing enormously depending on which of the three “degrees” you’re charged with, what kind of building was involved, and what the prosecution says you were after.

 

This guide walks through every form of burglary in Colorado, the penalties for each, the related offenses often charged alongside them, and the defenses most commonly used.

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What “Burglary” Actually Means Under Colorado Law

Colorado’s burglary statutes are found at C.R.S. §§ 18-4-201 through 18-4-205. Across the first and second degrees of burglary, the prosecution has to prove that the person charged:

1. knowingly
2. entered unlawfully, or remained unlawfully after a lawful or unlawful entry,
3. in a building or occupied structure,
4. with intent to commit a crime inside (a crime against a person or property; for first degree, any crime other than trespass).

A few of those pieces require some unpacking.

“Unlawfully” is defined by permission. Under C.R.S. § 18-4-201(3), you enter or remain unlawfully when you are “not licensed, invited, or otherwise privileged to do so.” Walking into a store during business hours is lawful, regardless of your reasons, unless the owner or an authorized person has personally ordered you not to enter. And if a building is only partly open to the public, permission to be in the lobby is not permission to be in the back office.

No break-in is required. Second-degree burglary covers someone who “breaks an entrance into” a building, but it also covers someone who simply walks in through an unlocked door or who enters legitimately and then stays after permission ends.

No theft is required. The crime is complete when the person is unlawfully inside with the required intent. The prosecution doesn’t need to prove anything was actually taken.

Timing of intent matters, but less than it used to. In Cooper v. People, 973 P.2d 1234 (Colo. 1999), the Colorado Supreme Court held that a jury had to find the defendant decided to commit a crime at the moment he became a trespasser. The legislature responded.

For offenses committed on or after July 1, 1999, the statute reaches anyone who “remains unlawfully after a lawful or unlawful entry,” and the Court of Appeals has since confirmed that criminal intent formed after an unlawful entry, while the person is unlawfully remaining, can support a burglary conviction (People v. Larkins, 109 P.3d 1003 (Colo. App. 2005)).

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The three degrees of burglary

First degree burglary (C.R.S. § 18-4-202)

This is the most serious form. It’s second degree burglary elements plus an aggravating factor. A person commits first degree burglary by unlawfully entering or remaining in a building or occupied structure with intent to commit a crime other than trespass against a person or property, and, while entering, while inside, or in immediate flight, the person or another participant:

• assaults or menaces anyone,
• is armed with explosives, or
• uses a deadly weapon, or possesses one and threatens to use it.

Notice the “or another participant” language. You can be charged with first degree burglary because a co-defendant was armed, even if you were not.

Classification: Class 3 felony.

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Second-Degree Burglary (C.R.S. § 18-4-203)

This is the workhorse burglary charge, and it has the most internal variation. The elements are the ones listed above, and the classification depends on what was burglarized and what the objective was:

That last row is easy to overlook. A person who has been formally banned from a store and walks back in can technically face a second degree burglary charge, though it is a misdemeanor.

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Third-Degree Burglary (C.R.S. § 18-4-204)

Third-degree burglary has nothing to do with buildings. It covers entering or breaking into a vault, safe, cash register, coin vending machine, product dispenser, money depository, safe-deposit box, coin telephone, coin box, or similar apparatus or equipment with intent to commit a crime.

Classification: Class 2 misdemeanor, or class 1 misdemeanor if the objective was theft of a controlled substance lawfully kept in or on the property.

This is a big change from older material you may still find online. Third-degree burglary used to be a class 5 felony (class 4 if drugs were involved). Colorado’s 2021 misdemeanor reform, SB 21-271, reduced it to a misdemeanor for offenses committed on or after March 1, 2022.

Many law firm websites and even some model jury instruction materials still reflect the old classifications, so check the date on anything you read.

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Related offenses that often come with a burglary charge

Possession of burglary tools (C.R.S. § 18-4-205).

Possessing an explosive, tool, or other article “adapted, designed, or commonly used” for forcible entry or theft by physical taking, and intending to use it (or knowing someone else intends to) for that purpose. It is a class 2 misdemeanor, but a class 5 felony if the tools were knowingly possessed to facilitate forcible entry into a residence for the purpose of a physical taking.

First degree criminal trespass (C.R.S. § 18-4-502). 

Knowingly and unlawfully entering or remaining in another person’s dwelling, or entering a motor vehicle with intent to commit a crime inside. It is a class 1 misdemeanor, but a class 6 felony if the dwelling is inhabited or occupied.

Second-degree criminal trespass (C.R.S. § 18-4-503).

Entering or remaining on fenced or enclosed premises, or in the common areas of a hotel, motel, condominium, or apartment building (a petty offense, but a class 5 felony on agricultural land if the person intends to commit a felony there), or knowingly and unlawfully entering another person’s motor vehicle (class 2 misdemeanor).

Criminal trespass matters for two reasons. It’s the offense burglary is built on, since trespass plus criminal intent equals burglary, and it’s very often the offense a burglary charge gets negotiated down to.

Theft, criminal mischief, assault, and menacing are also commonly charged alongside burglary, because the “crime inside” is usually a separate offense in its own right.

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Penalties: what the sentencing ranges actually look like

Colorado sets a presumptive sentencing range for each felony class. Here are the ranges for offenses committed on or after July 1, 2020, from C.R.S. § 18-1.3-401:

For offenses committed on or after March 1, 2022, misdemeanors under C.R.S. § 18-1.3-501 are:

• Class 1 misdemeanor: up to 364 days in jail and/or a fine of up to $1,000
• Class 2 misdemeanor: up to 120 days in jail and/or a fine of up to $750

Putting the burglary tiers together:

Factors that can push the sentence up

Crime of violence.

First-degree burglary is one of the offenses listed in the “crime of violence” statute, C.R.S. § 18-1.3-406. It becomes a crime of violence when the defendant used, or possessed and threatened the use of, a deadly weapon, or caused serious bodily injury or death to someone other than a participant. A crime-of-violence sentence carries a mandatory minimum at the midpoint of the presumptive range and a maximum of twice the top of the range, and probation is generally off the table. Because crimes of violence are also treated as “extraordinary risk” crimes, which lifts the top of the class 3 range by four years, the practical exposure for a crime-of-violence first degree burglary is 10 to 32 years.

Aggravating circumstances.

A judge who finds extraordinary aggravating circumstances can sentence above the presumptive range. Extraordinary mitigating circumstances can move a sentence below it.

Habitual criminal statute.

Under C.R.S. § 18-1.3-801, a person convicted of a class 1 through 5 felony who has two prior felony convictions from separate criminal episodes within the past ten years can be sentenced to three times the top of the presumptive range. For a class 3 felony burglary, that is up to 36 years. With three prior felony convictions, the multiplier is four times, or up to 48 years for a class 3.

Consequences beyond the sentence

A felony burglary conviction can also result in restitution, loss of firearm rights, difficulties with employment and housing, and serious immigration consequences. Federal immigration law treats a “burglary offense” carrying a term of imprisonment of at least one year as an aggravated felony, so non-citizens facing burglary charges need immigration advice before any plea.

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Defenses to burglary charges in Colorado

The right defense depends entirely on the facts. These are the arguments that come up most.

1. You were licensed, invited, or privileged to be there.

Because “unlawful” entry is defined by lack of permission, consent is the most direct defense. It comes up in several forms:

• The place was open to the public. Under § 18-4-201(3), entering a place that is open to the public is lawful regardless of your purpose, unless someone with authority personally ordered you not to enter or remain.
• You had an invitation. A guest, roommate, tenant, or family member with permission to be in the space has a license to be there.
• You had a claim to be there. Disputes between co-owners, landlords and tenants, and current or former partners sometimes turn on who had the right to enter.

The limits matter, though. Permission to be in one area is not permission to be everywhere, and once permission is revoked (by the owner, or by a court order barring you from the location), staying becomes “remaining unlawfully.”

2. You didn’t know the entry was unlawful.

Burglary requires that the person act “knowingly.” A person who genuinely believed they had permission or authority to be inside lacks that mental state. But this defense has to be grounded in something real. In Oram v. People, 255 P.3d 1032 (Colo. 2011), two bail bondsmen entered a home while searching for a bail jumper. The Colorado Supreme Court held there is no common-law bonding agent’s privilege to enter a home in Colorado, and it treated the defendants’ use of a ruse to get inside as evidence that they knew they did not actually have authority to be there. A sincere belief in permission is a defense. A belief the facts contradict is not.

3. No intent to commit a crime inside.

Burglary is a specific-intent offense. Being somewhere you shouldn’t be is trespass. It becomes burglary only when you had the intent to commit a crime inside. Common versions of this defense:

• There was an innocent explanation. You entered to sleep, get out of the cold, look for a friend, or retrieve something you believed was yours. Colorado’s theft statute requires intent to deprive another of property, so a genuine belief that the property was yours can defeat that intent.
• The intended “crime” isn’t a crime against a person or property. Second-degree burglary requires intent to commit a crime “against another person or property,” and first degree excludes trespass itself. If the only thing the prosecution can point to is the unlawful presence, they may not have a burglary.
• The prosecution can’t prove intent at the relevant time. After Larkins, the intent-at-entry argument is much weaker if the person was unlawfully inside when the intent formed. But the prosecution still has to prove intent beyond a reasonable doubt, and because intent is often inferred from circumstantial evidence, it is frequently the weakest link.

A recent decision cuts the other way for people accused of violating protection orders. In People v. Dilka (Colo. March 2, 2026, No. 25SA187), the Colorado Supreme Court held 5-1 that a criminal violation of a protection order under § 18-6-803.5 automatically counts as a “crime against another person or property” for second degree burglary, following its earlier decision in People v. Rhorer. So entering a protected person’s home in violation of an order can support burglary without any proof that the person meant to hurt anyone.

4. The place doesn’t fit the charge.

Classification often depends on the type of structure, and each category can be contested:

• Dwelling. A dwelling is “a building which is used, intended to be used, or usually used by a person for habitation” (C.R.S. § 18-1-901(3)). A vacant, abandoned, or commercial structure may not qualify, which can mean the difference between a class 3 and a class 4 or 5 felony. The Colorado model jury instructions also flag an open question about whether the prosecution must prove the defendant knew the building was a dwelling.
• Building or occupied structure. Colorado defines “building” broadly, including certain vehicles adapted for overnight accommodation or business use (C.R.S. § 18-4-101), but not all vehicles qualify.
• Third-degree burglary. The statute lists specific containers and equipment. In Winter v. People, 126 P.3d 192 (Colo. 2006), the Colorado Supreme Court held that an employee locker is not a “vault” or “apparatus or equipment” under the statute.

5. For first-degree: the aggravating factor isn’t there.

First-degree burglary requires an assault, menacing, explosives, or use (or threatened use) of a deadly weapon by the defendant or another participant. If the prosecution can’t prove that factor, the charge may be reduced to second-degree burglary, which often carries a much lower level of exposure. Disputes over whether a weapon was actually used or threatened, whether a co-participant’s conduct can be attributed to the defendant, and whether an object was a “deadly weapon” all come up.

6. Mistaken identity or insufficient evidence.

Many burglary cases are built on circumstantial evidence: surveillance footage, a fingerprint or DNA sample, possession of items later identified as stolen, phone location data, or a witness who saw someone flee. Each of these can be challenged. Video can be too grainy to identify anyone. Fingerprints can be left at a place the person was lawfully present. Possession of stolen property is not the same as burglary. Alibi evidence can also be decisive.

7. Illegal police conduct.

If police searched a home, phone, or vehicle without a valid warrant or a recognized exception, or took a statement in violation of Miranda, the evidence can be suppressed. In burglary cases the physical evidence and any admission are often the heart of the case, so suppression can end it.

8. Intoxication negating specific intent.

Under C.R.S. § 18-1-804, intoxication is not a general defense, but evidence of intoxication can be offered when it is relevant to show the defendant lacked a required specific intent. Because burglary requires intent to commit a crime inside, this can matter. It is a difficult argument, though, and it does not excuse the conduct itself. It is used to challenge intent, and the strength of the argument depends on the evidence.

9. General defenses and procedural issues.

Depending on the facts, defenses like duress, entrapment, or choice of evils may apply. Procedural defenses matter too. The general statute of limitations for Colorado felonies is three years and for misdemeanors is eighteen months (C.R.S. § 16-5-401), with exceptions for specific offense categories.

10. Negotiated outcomes.

Even where the facts are difficult, a strong defense often creates leverage. Many burglary cases resolve through reductions to lesser offenses such as criminal trespass or theft, dismissal of the “dwelling” enhancement, a drop from first to second degree, or a deferred judgment or probation-based sentence. Understanding exactly which element the prosecution will struggle to prove is usually what drives a better outcome.

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Recent Developments in Colorado Burglary Law

• Misdemeanor reform (SB 21-271, effective March 1, 2022): reduced third-degree burglary from a felony to a misdemeanor and reset misdemeanor penalty ranges. Older sources will be wrong on this.
• Firearm theft (HB 25-1062, 2025): made theft of a firearm a class 6 felony regardless of the gun’s value. Burglary where the objective is theft of firearms or ammunition remains a class 3 felony under § 18-4-203.
• People v. Dilka (March 2026): established a bright-line rule that violating a criminal protection order supplies the predicate crime for second degree burglary.

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Burglary vs. Trespass in Colorado

Trespass is often the battleground. Burglary requires intent to commit a crime inside. Trespass is more about the unlawful entry or unlawful remaining.

If the state cannot prove intent beyond a reasonable doubt, a burglary can collapse into a trespass theory. This is not a technicality. It is the core.

Common “intent problems” for the prosecution:

• Intoxication and confusion (though this is complicated legally, it can undermine intent).
• Entering the wrong apartment, wrong hotel room, wrong house.
• A messy relationship situation where permission is disputed.
• No burglary tools, no stolen property, no statements, no clear motive.
• A person enters to retrieve their own property, and a fight happens, but the intent is ambiguous.

Prosecutors will often argue intent from circumstances. Defense attorneys try to show alternate explanations. That tug of war is the case.

Attempted burglary (you can be charged without actually getting inside)

Colorado can charge attempt if someone takes a substantial step toward committing burglary. That often comes up with:

• Pry marks on a door.
• Tools found nearby.
• Surveillance footage showing tampering.
• Statements to police.
• Co-defendant testimony.

Attempt is usually punished one level lower than the completed offense, but it is still serious. And it can still be a felony.

Sentencing and penalties

Colorado sentencing is not just “X years.” It is ranges, classes, potential mandatory parole, and sometimes mandatory minimums if it is treated as a crime of violence.

Here is a practical overview, without pretending every case is identical:

• First degree burglary: felony, often a class 3 felony. If a crime of violence is alleged and proven, prison exposure can jump and become more rigid.
• Second degree burglary: felony, commonly class 4, but can be class 3 in dwelling or controlled substance contexts.
• Third degree burglary: felony, commonly class 5.

And then there are the add-ons:

• Habitual criminal enhancements if the person has qualifying prior felonies
• Restitution (almost always if there is damage or loss)
• Protection orders in cases involving a person, domestic context, or alleged threats
• Immigration consequences for non-citizens (burglary can be a very dangerous charge in immigration law depending on the exact statute and plea wording)
• Collateral damage: employment, housing, professional licenses, firearms rights

If you are trying to estimate your exposure, do not just Google “class 4 felony Colorado sentence” and stop there. Your prior record, the facts, whether it is a dwelling, whether weapons are alleged, and how the DA charges it all matter.

If you’ve been charged

Burglary charges are serious, and the difference between the degrees is large. The same night’s events can be charged as a misdemeanor trespass, a class 4 felony, or a class 3 felony, depending on what the evidence shows about the building, your intent, and what anyone was carrying. Anyone under investigation or charged should:

• Stop talking to police and others about the incident until you’ve spoken with a lawyer.
• Preserve evidence: texts, receipts, location data, and the names of anyone who can confirm where you were or why you were there.
• Get advice about collateral consequences such as immigration, professional licensing, and firearm rights before making any decision about a plea.

A Colorado criminal defense attorney can review the specific charge, the evidence, and the options for defense or negotiation.

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FAQs (Frequently Asked Questions)

What is the key element that defines burglary under Colorado law?

The key element of burglary in Colorado is intent. Specifically, it involves unlawfully entering or remaining in a building, dwelling, or occupied structure with the intent to commit a crime inside. The focus is on proving intent rather than on the act of breaking in or on whether anything was stolen.

How does Colorado law differentiate between first, second, and third degree burglary?

Colorado classifies burglary into three degrees: First degree involves unlawful entry into a dwelling or building with intent to commit a crime while being armed, assaulting, or menacing someone. Second-degree generally involves unlawful entry into buildings or dwellings with the intent to commit a crime, but without the aggravating factors of first degree. Third-degree burglary involves unlawfully entering secure containers, such as safes or ATMs, with the intent to commit a crime inside.

Can you be charged with burglary in Colorado if the door was open and nothing was stolen?

Yes. In Colorado, you can be charged with burglary even if there was no forced entry (such as an open door) and even if nothing was stolen. The critical factor is whether you entered or remained unlawfully inside with the intent to commit a crime.

What are some examples of crimes that can fulfill the ‘intent to commit a crime’ requirement for burglary?

While theft is common, the ‘crime inside’ for burglary can also include assault, harassment, criminal mischief, trespass, or other criminal acts. The prosecution must prove the defendant intended to commit one of these crimes upon entering or remaining unlawfully.

How does Colorado law treat trespass differently from burglary?

Trespass focuses on unlawful entry or remaining on property without permission but does not require proof of intent to commit another crime inside. Burglary requires unlawful entry or remaining plus intent to commit a crime inside. Trespass can often be a lesser alternative charge when burglary cannot be proven.

What are typical penalties associated with different degrees of burglary in Colorado?

First degree burglary is usually charged as a class 3 felony and can carry enhanced sentences if classified as a crime of violence due to weapons or assault. Second degree burglary is commonly a class 4 felony but may elevate to class 3 in cases involving dwellings or controlled substances. Third degree burglary typically carries class 5 felony charges. Penalties vary based on specific circumstances and prior criminal history.

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Colorado Criminal Law –Burglary Crimes in Colorado: Class, Penalty, and Defenses To Those Crimes

The reader is alerted that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article above was accurate when it was drafted, but it cannot account for changes that occurred after it was uploaded.

ABOUT THE AUTHOR: H. Michael Steinberg – Email the Author at: hmsteinberg@hotmail.com

A Denver, Colorado Criminal Defense Lawyer – call his office at 303-627-7777 during business hours, or call his cell at 720-220-2277 if you cannot wait and need his immediate assistance.

“A good criminal defense lawyer is someone who devotes themselves to their client’s case from beginning to end, always realizing that this case is the most important thing in that client’s life.”

Putting more than 40 years of Colorado criminal defense experience to work for you.

One should be careful when selecting a Colorado criminal defense lawyer. We encourage you to “vet” our firm. Over the last 40 years – by focusing ONLY on Colorado criminal law – H. Michael has had the time to continually update himself in nearly every area of criminal law, including procedure, trial, and courtroom practice.

H. Michael works hard to deliver the best possible results for his clients, both in and out of the courtroom. He has written extensively on Colorado criminal law and continues to do so, and he hopes this article helps you in some small way.

Colorado Criminal Law –