What Constitutes Burglary in Tulsa?

burglary in TulsaWe think of burglary in Tulsa, Oklahoma as a crime always involving a man with a mask and a set of picklocks engaged in stealing the family jewels at night. And burglary in Oklahoma can involve that stereotypical image.

However, the reality is that burglary is a broader crime. It can also involve more than simply theft.

Burglary in Oklahoma Defined

In Oklahoma, burglary can be of the first or second degree. And burglary differs a little between those two classifications.

First-degree burglary in Tulsa is defined as an illegal entry by breaking and entering or other means into a dwelling or other structure with the intent to commit a crime inside at a time when another person is in the dwelling. Okla. Stat. tit. 21 § 1431

Because breaking and entering into any building with people inside puts those people at the risk of injury or death, first-degree burglary is a serious crime in Oklahoma.

It is important to understand that requisite intent is to commit a crime inside the building. That crime can be theft, rape, assault and battery, or any other crime.

Breaking and entering is actually a separate crime and is a lesser included offense in the crime of burglary. Breaking and entering is any illegal entry and it can be done in a variety of ways, including:

  • forcibly breaking a wall, outer door, window, window shutter, or the lock, bolts, or fastening of a window or door; or
  • breaking in any other manner while armed with a dangerous weapon or being assisted by one or more accomplices present at the scene; or
  • by picking a lock, using a false key, or by lifting a latch or opening a window.

Elements of First-Degree Burglary

First-degree burglary in Oklahoma is breaking and entering the dwelling of another (and a person who has the right to be inside is present at the time of the illegal entry) with the intent to commit a crime. OUJI-CR 5-12

The prosecution has the burden of proving all of these elements beyond a reasonable doubt. If any one element is left unproven, there is no conviction. This is a hefty burden, but prosecutors are very adept at handling these types of cases.

Second-Degree Burglary

Second-degree burglary is defined as breaking and entering another’s home or building, but a human being is not present at the time of the offense.

This crime can also be committed by breaking and entering a room, booth, tent, railroad car, or other structure — including any coin-operated or vending machine or other device — with the intent to steal any property therein or to commit any other felony crime. Okla. Stat. tit. 21 § 1435

Third-Degree Burglary

Third-degree burglary is the breaking and entering into any automobile, truck, trailer, or vessel of another (in which any property is kept) with the intent to steal any property or to commit a felony inside.


Any fact that disproves any necessary element of the crime is relevant to building a strong defense.

Permission or consent is the primary defense against an illegal breaking and entering charge. If a person has permission to enter and opens a window because they forgot their key, it may look like a breaking and entering, but the permission makes the entry legal.

The prosecution must also prove that the defendant had the intent to commit a crime inside. Intent is a necessary element to the crime, and it can be difficult to prove.

Prosecutors often look to circumstantial evidence to prove intent. An empty bag may be used to prove intent, but that same bag may be relevant to other facts that are important to your defense.

Defenses are intensely fact bound. Be sure and discuss all the facts of your case with an experienced Tulsa criminal defense attorney. Even the smallest facts may be important.


Burglary is a felony in Oklahoma. The penalty for first-degree burglary is 7 to 20 years in prison. Okla. Stat. tit. 21 § 1436

In addition, a first-degree conviction is subject to the 85% rule in Oklahoma. That means, that if convicted, you will have to serve 85% of your sentence before becoming eligible for parole. Okla. Stat. tit. 21 § 13.1

The penalty for second-degree burglary is up to seven years in prison, while the penalty for third-degree burglary is up to five years in prison.

If you are under investigation or are being charged for burglary, you will need an attorney knowledgeable and experienced in criminal law to help you preserve your freedom. Don’t wait. Call today.

Free Consultation with a Tulsa Criminal Law Defense Attorney

The Wirth Law Office is here to help when you need it most. We offer a free consultation with an experienced Tulsa criminal law attorney to help you defend your legal rights.

Call 918-879-1681 for a free consultation or submit a question through this website.

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