What Is the Difference Between Residential Burglary and Home Invasion?

The Nevada offenses of residential burglary and invasion of the home are separate and very different charges that are often misunderstood and confused, although both are felonies with severe penalties and long-term repercussions. For a person facing either charge, it is important to understand the differences. It is essential to get help from an experienced criminal law attorney to defend against either charge.

Residential Burglary

The crime of residential burglary is defined in NRS 205.060, which also defines other types of burglary. For a residential burglary, the law provides that a person who unlawfully enters or remains in a dwelling at night or during the day “with the intent to commit grand or petit larceny, assault or battery on any person or any felony, or to obtain money or property by false pretenses, is guilty of residential burglary.” The statute classifies residential burglary as a category B felony, punishable by a state prison term of one (1) to ten (10) years and a fine up to $10,000. Burglary with a deadly weapon or in an occupied property carry greater penalties.

The law says that, for purposes of the residential burglary statute:

“Dwelling” means any structure, building, house, room, apartment, tenement, tent, conveyance, vessel, boat, vehicle, house trailer, travel trailer, motor home or railroad car, including, without limitation, any part thereof that is divided into a separately occupied unit:
(1) In which any person lives; or
(2) Which is customarily used by a person for overnight accommodations,
regardless of whether the person is inside at the time of the offense.

An essential element of residential burglary is the intent to commit a felony, theft, or another crime upon entering the property. The intended crime does not need to be completed for the offense to be charged. A prosecutor only needs to prove that the defendant entered the dwelling with the intent to commit a felony, theft, or other criminal act. Use of force during entry is not a requirement of residential burglary. Even entry through an unlocked door or window can qualify, if the element of intent is present.

Home Invasion

Under NRS 205.067, invasion of the home occurs at night or during the day, when a person “forcibly enters a dwelling without permission of the owner, resident or lawful occupant, whether or not a person is present at the time of the entry.” The same definition of dwelling is used for this offense as for residential burglary. Home invasion also is a category B felony punishable by a state prison term of one (1) to ten (10) years and a fine of not more than $10,000. If a person has possession of a firearm or another deadly weapon during commission of the crime, or if substantial property damage occurs, the potential prison sentence increases. In addition, penalties can be even more severe if the home was occupied at the time of the invasion, because of the risk of harm to the occupants.

An essential element of invasion of the home is the use of force to enter the structure. It is not necessary for the home to be occupied at the time of entry. Under NRS 205.070, which applies to both residential burglary and home invasion, commission of another offense while inside the dwelling can result in separate charges and additional penalties.

Primary Difference Between Residential Burglary and Home Invasion

The primary distinction between residential burglary and home invasion is the focus on intent for burglary and the focus on forcible entry for home invasion. For burglary, the intent to commit a crime after entry is the distinctive element of the charge; whether or not force was used to enter the home is irrelevant. However, for home invasion, a key factor is the forcible entry into the home; the intent in entering is not a necessary element. So, while both offenses involve entry into a residential dwelling, the key elements of the two offenses are very different.

Both offenses are charged as category B felonies in Nevada. However, the circumstances of each crime can result in different sentencing outcomes. In some cases, it is possible for a defendant to be charged with both offenses for the same conduct, but each charge must be proven separately.

Defending Against Residential Burglary or Home Invasion

Both residential burglary and invasion of the home are very serious offenses with significant penalties. A conviction on either charge can have wide-ranging and long-term effects on the defendant’s personal life as well. In both cases, representation by a knowledgeable criminal defense attorney is essential. The attorney evaluates the evidence in the context of the required elements of the offense to develop defense strategies for negotiating with the prosecutor.

A solid defense also requires an in-depth understanding of all applicable criminal laws, rules, and procedures. Familiarity with the practices and policies of the local courts and prosecutors is also extremely important.

Schedule a Free Consultation With an Experienced Las Vegas Criminal Defense Lawyer

If you face a charge of residential burglary, home invasion, or any other state or federal criminal charge in Las Vegas, attorney Joseph Gersten is here to help. His investigative and trial background and extensive criminal defense experience enable him to provide an aggressive defense to any Nevada criminal charge, regardless of the offense.

The Gersten Law Firm assists clients in Las Vegas, Henderson, and elsewhere in Clark County. There is no charge for your initial consultation. Call 702.857.8777 or complete our online form to schedule an appointment.