Colorado divides burglary into three separate crimes — first, second, and third degree — and the differences between them change a case dramatically. A charge can range from a misdemeanor punishable by months in jail to a serious felony carrying a mandatory prison sentence. Understanding which degree applies, and why, is the first step in building a defense.
This article explains how Colorado defines burglary, what separates the three degrees, what the state has to prove, and what to do if you or someone you know has been charged.
What Is Burglary Under Colorado Law?
Contrary to the common assumption, burglary in Colorado does not require breaking in, and it does not require that anyone’s home was targeted. Under Colorado Revised Statutes § 18-4-201 to § 18-4-204, burglary generally means knowingly entering or unlawfully remaining in a building or occupied structure — or, for third degree burglary, a vault, safe, cash register, vending machine, or similar container — with the intent to commit a crime once inside, other than simple trespass.
That intent element matters. Prosecutors must show the person intended to commit some other crime (theft, assault, vandalism, and so on) — not just that they were somewhere they shouldn’t have been. Colorado courts have also clarified that this intent doesn’t have to exist at the exact moment of entry: it can form either before an unlawful entry or afterward, including after entering lawfully and then unlawfully remaining (Oram v. People, 255 P.3d 1032 (Colo. 2011); People v. Larkins, 109 P.3d 1003, 1004-05 (Colo. App. 2004)).
First Degree Burglary — C.R.S. § 18-4-202
First degree burglary is Colorado’s most serious burglary charge. It applies when a person knowingly enters or unlawfully remains in a building or occupied structure intending to commit a crime there, and during the entry, while inside, or in immediate flight afterward, the person (or another participant) assaults or menaces someone, or is armed with a deadly weapon or explosives.
Classification: Class 3 felony
Penalty range: 4 to 12 years in the Department of Corrections, a fine of $3,000 to $750,000, and 3 years of mandatory parole upon release
Because first degree burglary folds in an assault, a threat, or a weapon, it’s frequently charged alongside separate assault or menacing counts arising from the same incident.
Second Degree Burglary — C.R.S. § 18-4-203
Second degree burglary covers knowingly breaking an entrance into, entering unlawfully in, or remaining unlawfully in a building or occupied structure with intent to commit a crime inside. Unlike first degree, there’s no assault, menacing, or weapon requirement — the classification instead turns on what was entered and, in some cases, what the person was after.
- Class 3 felony (4–12 years, $3,000–$750,000 fine) if the burglary is of a dwelling, or if the objective was theft of a controlled substance or of a firearm or ammunition lawfully kept on the property
- Class 4 felony (2–6 years, $2,000–$500,000 fine) if the burglary is of an occupied structure or a building used for a commercial business
- Class 5 felony (1–3 years, $1,000–$100,000 fine) for burglary of any other building not covered above — this is the baseline classification for second degree burglary
All three felony tiers carry mandatory parole on release (3 years for class 3 and 4, 2 years for class 5). There’s also a narrower version of this charge: knowingly violating a retailer’s written notice or a court order barring someone from a specific retail location during business hours is charged as second degree burglary but classified only as a class 2 misdemeanor under C.R.S. § 18-4-203(2)(c).
Third Degree Burglary — C.R.S. § 18-4-204
Third degree burglary is narrower than many people expect. It applies specifically to entering or breaking into a vault, safe, cash register, coin or vending machine, product dispenser, money depository, safety deposit box, coin telephone, or similar coin-operated equipment, with intent to commit a crime.
Classification: Class 2 misdemeanor (up to 120 days in jail and/or a fine up to $750), elevated to a class 1 misdemeanor if the objective was theft of a controlled substance kept in or on the property.
Colorado courts have read this list narrower than it might sound. In Winter v. People, 126 P.3d 192, 196 (Colo. 2006), the Colorado Supreme Court held that an unsecured, unlocked locker that doesn’t have the appearance of being used for safekeeping valuables falls outside the statute — meaning not every closed or compartmentalized container automatically qualifies.
A Related Charge: Possession of Burglary Tools — C.R.S. § 18-4-205
Colorado also criminalizes possessing a tool, explosive, or device adapted or commonly used for breaking into a building, vault, or coin-operated machine, with intent to use it for a burglary. This charge can be filed on its own, even if no actual break-in occurred, and often comes up in cases where someone is stopped with tools in a vehicle near a business after hours. Importantly, the prosecution has to prove more than possession plus some general intent — Colorado’s Court of Appeals has held the jury must find the person intended to use that specific item to commit a burglary or a theft by physical taking, not just any purpose (People v. Ridgeway, 2013 COA 17, 307 P.3d 126).
How Burglary Differs From Theft, Trespass, and Robbery
These charges get confused often, and the distinctions affect strategy:
- Trespass is unlawfully entering or remaining on property with no intent to commit another crime there. Burglary requires that additional criminal intent.
- Theft is taking someone else’s property. A single incident can generate both a burglary charge (for the unlawful entry with intent) and a separate theft charge (for what was actually taken).
- Robbery (C.R.S. § 18-4-301) involves taking property from a person’s immediate presence by force or threat of force — it doesn’t require entering a structure at all, which is what separates it from burglary.
Defenses to a Colorado Burglary Charge
Every case turns on its own facts, but defenses commonly raised in Colorado burglary cases include:
- Lawful presence. The person had permission or a legal right to be on the property, which defeats the “unlawful entry or remaining” element.
- No intent to commit a crime inside. Entry alone isn’t burglary — the prosecution has to prove what the person intended at the time, which can be contested, particularly when no second crime was ever completed.
- Mistaken identity. Burglaries are often charged based on circumstantial evidence — security footage, fingerprints, or witness description — which can be challenged.
- Voluntary intoxication or mental state issues, which may be relevant to whether the person formed the specific intent the statute requires.
- Insufficient evidence on degree. Even when entry and intent aren’t seriously disputed, which degree applies — and therefore the sentencing exposure — often is.
- Lesser-included offense. Colorado courts have held that first degree criminal trespass of a dwelling is a lesser included offense of second degree burglary (Whiteaker v. People, 2024 CO 25, ¶ 19, 547 P.3d 1122, overruling the contrary rule in People v. Garcia, 940 P.2d 357 (Colo. 1997)), and the Colorado Court of Appeals has applied that same reasoning to first degree burglary as well (People v. Miller, 2024 COA 66, ¶¶ 67–69, 556 P.3d 1262). This means a jury can in some circumstances convict on the lesser trespass charge instead.
What To Do If You’re Charged With Burglary in Colorado
- Don’t talk to police or insurance/loss-prevention investigators without a lawyer present. Anything said can be used to establish the intent element prosecutors need.
- Preserve evidence early. Text messages, receipts, timestamps, and witnesses who can speak to your reason for being on the property can matter more than they seem at first.
- Understand the charge you’re actually facing. Ask your attorney which degree is charged and why — the facts alleged for the assault/weapon element in a first degree charge, or the dwelling/commercial classification in a second degree charge, drive the entire sentencing range.
- Act quickly on bond and court dates. Missing a court date in a felony burglary case can result in a separate failure-to-appear charge and a warrant.
Frequently Asked Questions
Is burglary always a felony in Colorado?
No. First and second degree burglary are felonies, but third degree burglary — breaking into a safe, vault, cash register, or vending machine — is a misdemeanor unless the target was a controlled substance.
Can I be charged with burglary if I didn’t break anything?
Yes. Despite the word “burglary,” Colorado law doesn’t require forced entry. Unlawfully entering or remaining in a building with intent to commit a crime inside is enough, even if a door was unlocked or already open.
What’s the difference between burglary and home invasion?
Colorado doesn’t have a separate “home invasion” statute. A break-in at an occupied home that involves a weapon or an assault is typically charged as first degree burglary; a residential burglary without those elements is typically charged as second degree burglary of a dwelling.
Can burglary charges be combined with other charges?
Often, yes. It’s common to see burglary charged alongside theft, criminal mischief, assault, or menacing arising from the same incident, since each statute targets a different part of the conduct.
Does a burglary conviction affect future employment or housing?
A felony burglary conviction can affect background checks used by employers and landlords, and professional licensing in some fields. The specific impact depends on the degree and class of the conviction and is worth discussing directly with an attorney.
Talk to a Denver Criminal Defense Attorney
Burglary charges carry serious, fact-specific consequences, and the degree alleged against you shapes everything from bond to sentencing exposure. If you or a family member has been charged with burglary in the Denver area, Mile High Legal can review the specifics of your case and explain your options going forward. Contact our office for a consultation.
