What is Trespassing?
Trespassing in Virginia is defined in §18.2-119 as, essentially, going onto land of which such entry is forbidden. The Commonwealth must prove that the Defendant was notified they were forbidden to do so either orally or in writing or by posted sign where it can reasonably be seen. Many times people inadvertently enter a park or school after hours or, perhaps, intentionally do so to have a peaceful place to hang out. Unfortunately, Trespassing is a Class 1 Misdemeanor and carries up to 12 months in jail with a $2500 fine. We offer a Free Consultation to discuss your case. Give us a call or use the contact form below.
Going onto the land of another under a bona fide claim of right is not trespassing. A good faith belief that one has the right to be on the premises negates criminal intent.
Was the posted sign reasonably visible? If an individual entered an area that is forbidden but the sign is not posted in that area, they lack the criminal intent to commit a trespass and are not guilty.
What is Unlawful Entry?
Unlawful entry in Virginia is defined in §18.2-121 as entering the land or building of another so as to damage or otherwise interfere with the rights of the owner of that property. Unlawful entry is a Class 1 Misdemeanor and carries up to 12 months in jail with a $2500 fine. Additionally, if the land or building is selected by the Defendant because of the race, religion, or color of the owner or occupant then Unlawful entry is a Class 6 Felony with a mandatory term of 30 days in jail with a total sentence of up to 5 years and $2500 fine.
Unlawful Entry Defenses:
The Commonwealth must prove that the Defendant intended to damage or otherwise interfere with the owner's rights to the property. Simply being on the property is not an unlawful entry. However, it will likely transform into a trespass because, once the Defendant is ordered to leave by the owner or occupant, they are on notice they are forbidden to be on that land.
Trespass upon Church or School Property:
Trespassing upon a church or school is defined in §18.2-128 as entering the premises of a school or church in the nightime without the consent of an authorized person. Such a violation is a Class 3 Misdemeanor and is punishable by a fine of $500. Additionally, whether or not the individual is a church member or student of the school, they may not enter the property after being directed to leave by an authorized person or by any posted notice that can reasonably be seen. Such a violation is a Class 1 Misdemeanor and carries up to 12 months in jail with a $2500 fine. The offense is a Class 6 Felony if it is established that the intent behind the individual entering the property is to abduct a student.
Trespass upon Church or School Property Defenses:
The Commonwealth must prove that, if the Defendant was asked to vacate the premises, such request was made by an authorized agent (and not a person who is not otherwise connected to the church or school by virtue of their employment). As with any Trespass, the Commonwealth must also prove there was proper posted notice that entry is forbidden.
First Offense Trespass and Unlawful Entry May Be Dismissed:
If the Defendant has never had a felony conviction and is currently charged with Trespass or Unlawful Entry, they are eligible to have the case continued for a period of time, be put on probation with certain terms and conditions (e.g. community service and good behavior), and have the charge later dismissed. See §19.2-303.2
Do I need a trespass lawyer?
Due to Trespassing and Unlawful Entry being Class 1 Misdemeanors, individuals should be represented by a lawyer. Don't leave it to the discretion of the Judge. Remember, they likely will have a person there, whether it be a police officer or victim, who is asking the Court for a conviction and, possibly, for jail time. We are used to having upset police officers and victims and we will be quick to remind them that just because they're asking for it does not mean they are going to get it. Rather, we will seek to obtain the results you, the client, wants.