Colorado law defines first-degree burglary as (a) knowingly entering someone else’s property with the intent to commit a crime, and (b) committing an assault or having explosives or a deadly weapon.

As the most serious burglary crime, first-degree burglary is a class 3 felony that carries

• 4 to 12 years in prison and/or
• $3,000 to $750,000 in fines.

The language of 18-4-202 states that:

(1) A person commits first degree burglary if the person knowingly enters unlawfully, or remains unlawfully after a lawful or unlawful entry, in a building or occupied structure with intent to commit therein a crime, other than trespass as defined in this article, against another person or property, and if in effecting entry or while in the building or occupied structure or in immediate flight therefrom, the person or another participant in the crime assaults or menaces any person, the person or another participant is armed with explosives, or the person or another participant uses a deadly weapon or possesses and threatens the use of a deadly weapon.

Colorado law divides burglary into three degrees (from most serious to least serious):

Burglary crime in Colorado	Penalties (generally)
First-degree burglary (CRS 18-4-202)	Class 3 felony: 4 to 12 years in prison and/or $3,000 to $750,000
Second-degree burglary (CRS 18-4-203)	Burglary of a dwelling Class 3 felony: 4 to 12 years in prison and/or $3,000 to $750,000
	An occupied structure or of commercial building Class 4 felony: 2 to 6 years in prison and/or $2,000 to $500,000
	Burglary of other buildings Class 5 felony: 1 to 3 years in prison and/or $1,000 to $100,000
Third-degree burglary (CRS 18-4-204)	Class 2 misdemeanor: Up to 120 days in jail and/or up to $750.

Below, our Colorado criminal defense lawyers discuss the following frequently asked questions about first-degree burglary charges for Colorado residents:

• 1. What is burglary?
• 2. What is first-degree burglary?
• 3. What is a deadly weapon under Colorado law?
• 4. What is an explosive under Colorado law?
• 5. What is assault or menacing under Colorado law?
• 6. What are the penalties for this offense?
• 7. What defenses can I raise in my case?
• Additional reading

1. What is burglary?

Burglary in Colorado is separated into three elements:

1. you knowingly
2. entered or unlawfully remained on another person’s property
3. with the intent to commit any crime (other than criminal trespass) while on the property.¹

What does “knowingly” mean?

You commit an offense knowingly if you:

• conduct yourself in a way or under a circumstance prohibited by a Colorado burglary law, or
• are aware that the conduct is practically certain to cause a result prohibited by the law.²

You must commit each element of the offense knowingly in order to be guilty of the crime.

Do I have to “break in” to enter or unlawfully remain?

No. While many people imagine a break-in late at night as a burglary, that is not necessary. You could simply walk right through the front door without permission in order to commit a crime.³

Example: Ann walks through the unlocked front door of a house while the family is in the back having a party. She steals a television, jewelry, and cash. Ann is guilty of burglary, even though she didn’t “break in” when she entered unlawfully.

Do I have to have already formed the intent to commit a crime?

Yes. It is not enough that you formed the intent to commit the crime after entering the premises. If the intent was formed to commit the crime after you entered, you are not guilty of burglary.

2. What is first-degree burglary?

First-degree burglary under CRS 18-4-202 is the most serious form of the crime.

A first-degree burglary occurs when you commit a second-degree burglary but certain additional factors are met. Second-degree burglary is committed when you:

• knowingly break an entrance into;
• enter unlawfully in; or
• remain unlawfully after a lawful or unlawful entry in

a building or occupied structure intending to commit a crime against another person or property.⁴

If, in addition to committing the offense of the second degree, you do any of the following, you are guilty of the offense in the first degree:

• assault or menace any person (this can include domestic violence); or
• are armed with explosives; or
• use a deadly weapon; or
• possess and threaten the use of a deadly weapon.⁵

These aggravating circumstances cause the second-degree burglary to rise to the level of a first-degree offense.

3. What is a deadly weapon under Colorado law?

For purposes of CRS 18-4-202, a “deadly weapon” is defined as:

• A firearm, whether loaded or unloaded; or
• A knife, bludgeon, or any other weapon, device, instrument, material, or substance, whether animate or inanimate, that, in the manner it is used or intended to be used, is capable of producing death or serious bodily injury.⁶

Examples of deadly weapons include (but are not limited to):

• Guns,
• Knives,
• Baseball bats,
• Metal tools (such as hammers),
• Chainsaws,
• Blow torches,
• Your fists (depending on the circumstances), and
• Any hidden object you represent to be a deadly weapon.

Do I actually have to use the deadly weapon?

No. Simply threatening to use a deadly weapon you in fact possess is sufficient to constitute first-degree burglary.

Example: Gordy carries a shotgun into a Denver home in order to rob it. He threatens to shoot Gary, his wife, and two children if they do not get on the floor and stay there while he robs the place. Gordy then proceeds to steal a lot of property and never actually uses the gun on any of the residents. A peace officer arrests Gordy, and he gets charged. Gordy is still guilty of first-degree burglary because he threatened the use of a deadly weapon that he possessed, even though he did not actually use it.

4. What is an explosive under Colorado law?

An “explosive” under Colorado law means:

• any material or container
• containing a chemical compound or mixture
• commonly used to produce an explosion
• that would create a sudden destructive effect.⁷

These include but are not limited to:

• dynamite,
• C4,
• blasting agents,
• blasting caps,
• exploding cords,
• T.N.T. and its mixtures,
• nitroglycerin,
• missiles,
• bombs,
• Molotov cocktails, and
• more.

Use of any of these or other products that could or are designed to explode could lead to a charge of first-degree burglary if all of the other elements are also met.

5. What is assault or menacing under Colorado law?

You commit the crime of menacing when:

• you knowingly
• place or attempt to place another
• in fear of imminent serious bodily injury
• through any threat or physical action.⁸

You can commit a Colorado assault offense in different ways.

6. What are the penalties for this offense?

First-degree burglary cases are usually a class 3 felony. Punishment for Colorado first-degree burglary can include:

• 4-12 years in prison (with 5 years mandatory parole), and/or
• a fine of $3,000-$750,000.

What is a “crime of violence?”

First-degree burglary carries an enhanced penalty as a Colorado “crime of violence” if:

• you used or possessed and threatened the use of a deadly weapon; or
• you caused serious bodily injury or death to any other person except another participant.

7. What defenses can I raise in my case?

Here at Colorado Legal Defense Group, we have represented literally thousands of people charged with burglary. In our experience, the following three defenses have proven very effective with prosecutors, judges, and juries:

1. You were lawfully on the property. Unless the prosecution can produce proof you entered the property without permission of the owner/manager, then burglary charges are inapplicable to your case. Often we can find evidence such as text messages and voicemails by property owners that explicitly invited our clients onto their property.
2. You had no intent to commit a crime. This is our most successful defense because prosecutors have no way of physically showing what was going on inside your head. Unless the D.A. can prove beyond a reasonable doubt that you lacked an innocent reason for being on the property, the court has to dismiss the burglary charge.
3. Law enforcement performed an unlawful search. Perhaps the police in your case had an invalid search warrant or conducted a warrantless search without legal justification. When this happens, we ask the court to suppress any evidence the police found from their unlawful search. Assuming the judge agrees, the D.A. may be forced to drop the burglary charge for lack of proof.

Alternatively, it may be possible to get a first-degree burglary charge reduced to second-degree burglary if the D.A. has insufficient evidence to prove any aggravating factors (such as you having a deadly weapon or being violent).

Additional reading

For more in-depth information, refer to these scholarly articles:

• From the Thief in the Night to the Guest Who Stayed Too Long: The Evolution of Burglary in the Shadow of the Common Law – Indiana Law Review.
• Burglary – Crime & Justice.
• Reformation of Burglary – William & Mary Law Review.
• Reconceptualizing Burglary: An Analysis of the Use of Burglary as a Criminal Enhancement – Virginia Journal of Criminal Law.
• That’s Not a Burglary! Classic Crimes and Current Codes – Houston Law Review.

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