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Burglary is a serious charge, and for good reason. This offense is a threat not only to the victim’s valuables but also to the victim’s safety should he or she be home at the time of the break-in.

Burglary is always a felony charge in Colorado, with increasing levels of severity depending on aggravating factors. The type of structure, whether it was occupied, and the defendant’s reason for breaking and entering are all considered.

You might be surprised to learn, though, that you can face felony-level burglary charges even if you do not actually commit a burglary or attempt to do so.  That’s right. You may be thinking how is that possible?

Let’s take a look at the laws surrounding Possession of Burglary Tools in Colorado, and the defense strategies often used in these cases.

Possession of Burglary Tools: The Other Felony-Level Burglary Charge

If you are in possession of tools used for breaking and entering and intend to use them to commit a burglary, you are committing the offense of Possession of Burglary Tools, which is also a felony level charge.

It’s worth repeating: Even if you aren’t caught actually committing a burglary, you can still be convicted of a felony should the prosecution prove that you were in possession of tools that could be used to commit a burglary, and intended to use them as such.

According to Colo. Rev. Stat. §§ 18-4-205:

A person commits possession of burglary tools if he possesses any explosive, tool, instrument, or other article adapted, designed, or commonly used for committing or facilitating the commission of an offense involving forcible entry into premises or theft by a physical taking, and intends to use the thing possessed, or knows that some person intends to use the thing possessed, in the commission of such an offense.

This is a Class 5 felony, punishable by 1-3 years in prison and/or a fine of $1,000 – $100,000. In addition, you will face the collateral consequences of being a convicted felon.

Possession of Burglary Tools Is a Crime of Intent

Burglary tools are commonly used for many other reasons that don’t involve doing anything illegal. For example, a plumber could easily be carrying multiple burglary tools at any given time.

What if Joe, a plumber, is finishing up his workday, and is apprehended because he matches a rough description of an attempted burglary suspect from a crime scene nearby? Clearly, he’s in possession of the right tools. Should he, therefore, be charged with Possession of Burglary Tools?

He may be upon apprehension, but with the right defense team, it won’t be quite so easy to convict. This is where the element of intent comes in.

Proving Intent to Commit Burglary

In order to find you guilty of Possession of Burglary Tools, the prosecution must prove beyond a reasonable doubt that you:

• Possessed any explosive, tool, instrument, or article commonly used for burglary
• With the intent of using the articles possessed, or with the knowledge that some person intends to use the articles, in the commission of a burglary

In the above case of Joe, there’s little question that he was in possession of burglary tools when he was apprehended. The attempted nearby burglary was caught on a security camera, and the suspect was dressed similarly to Joe.

However, Joe can vouch for his occupation as a plumber, and even provide a work order for an address near the site of his arrest. This would cast significant doubt on Joe’s attempt or intention to use these tools in the commission of a burglary.

In this case, it would be very unlikely for Joe to be convicted of Possession of Burglary Tools, as the defense of No Intent would make a very strong case for his innocence.

No Intent: The Universal Defense

For most criminal offenses, the defendant must perform the act in question with the intent of committing a criminal offense. Therefore, a lack of criminal intent can be a strong defense for many crimes.

That said, the defense of “no intent” can relieve the suspect of criminal liability, but does not affect civil liability. For example, if the suspect accidentally sets a house on fire, this does not constitute arson, but the suspect could be held civilly liable for the resultant damages.

For most criminal offenses, the defendant must perform the act in question with the intent of committing a criminal offense. Therefore, a lack of criminal intent can be a strong defense for many crimes.

That said, the defense of “no intent” can relieve the suspect of criminal liability, but does not affect civil liability. For example, if the suspect accidentally sets a house on fire, this does not constitute arson, but the suspect could be held civilly liable for the resultant damages.

For crimes that involve intent in the absence of committing a prohibited or negligent action, for example, when charged with Possession of Burglary Tools, the defense of No Intent, if valid and backed by sufficient evidence, will generally clear the defendant of any liability.

About the Author:

Andrew Bryant is a well-respected Colorado Springs criminal attorney who has been practicing in the area for years. A Colorado native, he returned to the home he loves after graduating from the University of Kentucky College of Law. Now, he uses the knowledge he gained as an El Paso County District Attorney to fight tirelessly for his clients’ rights. He is AV-Preeminent rated, has been recognized for his work by The National Trial Lawyers, and has been named to Best of the Springs lists by The Gazette for years.