What Is Criminal Trespass in Virginia?

In Virginia, criminal trespass is described in Virginia Code § 18.2-119 as when any person goes into and remains in a building, premises, or on the land of another, without lawful authority, after having been told not to do so either in writing or orally by the owner, custodian, lessee, or agent of any of these persons. Criminal trespass typically also occurs when a person enters another’s land or building after being forbidden to do so by a sign posted visibly on the land or property. This offense is classified as a Class 1 misdemeanor, carrying a punishment of up to 1 year in prison or a fine of up to $2,500.

According to Virginia law, criminal trespass also occurs when someone enters another’s property for the purpose of causing damage. The offense may also be upgraded to a Class 6 felony if it is aggravated, for example, if the property was entered because of a racial or other characteristic. The elements of this offense include entering or remaining on the property without lawful authority or permission, having received prior notice against entry, and the offender must have known that they were forbidden from entering or remaining on the property. This means that it is generally not enough for trespass if someone is simply on your property without permission. It must be shown that the entry was forbidden and there was a notice to that effect.

How to Look Up Public Criminal Trespass Records in Virginia

Criminal trespass records in Virginia are publicly accessible and may be viewed or obtained through court and county records. Anyone may check if someone has a trespass case or has been convicted of criminal trespass by submitting a records request in person or via mail. Records requests may be forwarded to your local court office or the clerk of the court where the case was handled. This request typically provides details of the person subjected to the check and other information required for a search.

Law enforcement agents also have access to a criminal database, which provides details of individuals and their criminal history. Requesters may also check public criminal records online through the court’s Case Status and Information website. You may also request criminal information through the Virginia State Police’s Criminal Record Check website. This website provides a form that requesters typically fill out and submit online. These are free tools, but the form may not be notarized online for a fee of $25. Requesters using the state police request typically wait approximately 15 days to get a result.

Types of Criminal Trespass Offenses

Criminal trespass in Virginia is classified under primary trespass, as outlined in Virginia Code § 18.2-119, and aggravated trespass. These types of crimes show how certain factors, such as notice against entry, prejudicial motive, or other aggravating factors, may change the nature of the offense of trespass.

Primary trespass, also known as trespass after having been forbidden, is the basic form of criminal trespass, which involves entering without permission or legal authority, despite communication or a sign deterring entry. It is a class 1 misdemeanor punishable by up to 12 months in jail and a fine of up to $2,500. Other forms of trespass include:

• Instigating trespass by another according to § 18.2-120. This involves when someone solicits, encourages, procures, or urges another to trespass. It is a Class 1 misdemeanor in Virginia.
• Trespass with discriminatory motive according to § 18.2-119 / § 18.2-121. This offense involves intentionally selecting a property for trespass or entry based on religion, gender, disability, race, sexual orientation, national/ethnic origin of the occupant or owner, or gender identity. This is a Class 6 felony in Virginia.
• Posting no trespassing signs illegally according to § 18.2-119.1. This offense involves someone intentionally posting no trespassing signs on another person's property without consent. It is a class 3 misdemeanor in Virginia.
• Other forms of trespass recognized by Virginia law include: Trespass on school property/school buses according to Va. Code § 18.2-128, trespass on cemeteries at night according to Va. Code § 18.2-12,5 which is usually treated as a Class 4 misdemeanor, and Trespass by spotlight on agricultural land according to Va. Code § 18.2-121.2 which is classified as a Class 3 misdemeanor.

Penalties for Criminal Trespass in Virginia

Criminal trespass is generally a misdemeanor in Virginia and does not carry severe punishment unless it is upgraded to a felony. The basic form of trespass, which is trespass after having been forbidden, is a class 1 misdemeanor with a punishment of up to a year imprisonment or up to $2,500 fine or both. The maximum sentence being one year makes the offense remain in the category of misdemeanors. The offense of entering a property for the purpose of causing damage is also a class 1 misdemeanor. However, there are enhanced felonies, as outlined in Va. Code § 18.2-121, which have more serious elements and more severe punishments.

When someone intentionally enters another's property based on color, race, religion, gender, disability, sexual orientation, or national origin of the owner or occupant, the offense of criminal trespass is typically upgraded to a class 6 felony.

This offense has a punishment of mandatory 6 months confinement, of which there must be at least 30 days active time, and the offender is still liable for imprisonment of up to 5 years. Other variations of trespass remain in the misdemeanor category, such as posting unauthorized no trespass signs.

Can You Be Arrested for Criminal Trespass in Virginia?

Yes, criminal trespass in Virginia is an offense that may lead to an arrest. This is because one of the ingredients of the offense is that the owner of the property must have given a notice against entry, which the trespasser violated. Thus, law enforcement agents have the authority to act upon the violation and detain the offender. Thus, it is an arrestable offense according to Virginia Code § 18.2-119. The notice given by the property owner or custodian may be in writing, orally, or using a sign posted in a visible place. Law enforcement agents may arrest a trespasser in situations where the agents observed the offender committing the crime, or there is witness testimony or evidence showing the act. Surveillance evidence, such as video footage, may also be used as probable cause to detain a suspected trespasser.

How Criminal Trespass Differs from Burglary or Breaking and Entering in Virginia

Criminal trespass and burglary are distinct offenses in Virginia with varying elements and penalties. Burglary has a more narrow description of where the offender may enter to constitute the offense, while criminal trespass has a broader description of properties the offender may enter, such as a motor vehicle or land. Here are some key distinctions between these offenses:

• Criminal trespass occurs when a person simply enters another’s property without consent or legal authority, despite the owner or custodian’s written or oral directive against entry, while burglary occurs when someone enters another person’s building or structure with the intent to commit a felony. The lack of intent for further crime makes criminal trespass a lesser offense.
• A burglary offense may occur through breaking and entering, or entering without breaking. Thus, burglary may be proven even if there is no forced entry, while criminal trespass does not have a requirement for forced entry, as it may occur when someone enters and stays on a parcel of land.
• Criminal trespass may occur at any time of the day, while burglary in Virginia may happen at any time, but state laws differentiate between the conditions for nighttime and daytime offenses. Nighttime burglaries are seen as more serious offenses in Virginia due to the risk posed to the occupants of the building or structure.
• Criminal trespass has lesser penalties in Virginia, as it is generally a misdemeanor punishable by up to 1 year imprisonment and/or a fine of up to $2,500, while burglary carries higher penalties of between 5 and 20 years imprisonment and/or a fine of up to $100,000. Burglary offenses that are committed with a deadly weapon are upgraded to a class 2 felony with a penalty of between 20 years and life imprisonment and/or $100,000 fine.

Can a Criminal Trespass Charge Be Dismissed or Reduced in Virginia?

Yes, criminal trespass charges in Virginia may be reduced or dismissed due to various reasons. Low-risk or first-time offenders may get their charges reduced or dismissed more easily than repeat offenders or individuals with prior convictions. Some circumstances that may cause the charges to be reduced or rejected include a lack of sufficient evidence, when an unclear notice is given by the property owner or custodian, or if the defendant can prove they reasonably believed they had permission to enter and remain on the property.

The prosecution and defense attorneys may also arrange a plea deal where the defendant pleads no contest or guilty for a lower sentence, fine, or probation in place of imprisonment. There is also deferred adjudication, which works similarly to plea deals, but the court delays the conviction after the defendant’s plea to give the offender a chance to complete community service and to pay court costs or restitution.

There are also diversion programs for first-time offenders who may attend counseling programs, execute community service, and avoid any arrests for a stipulated period. Charges may also be expunged or sealed, whether there is a conviction or not.

Will a Virginia Criminal Trespass Charge Stay on Your Record?

Yes, criminal trespass charges and convictions typically remain on your public records indefinitely. This means anyone may view the details of your trespass charge and the court's conviction on the case. Anyone who conducts a background check on you typically will be able to access these charges and convictions unless you apply for them to be removed or sealed. Such checks may be done for housing or rental applications as well as part of employment processes. If the charges are dismissed or a nolle prosequi is entered, or there is a not guilty verdict, the charge typically remains on your public record.

You may apply for these records to be expunged or sealed by the court. This process typically removes them from public access platforms but does not entirely destroy them. It means that they usually remain accessible to law enforcement officials or government agencies upon request. Note that completion of a diversion or deferred program typically does not automatically remove the charges from your public records.

Expungement or Record Sealing Options in Virginia

Expungement or sealing of records involves removing certain records from publicly accessible archives. This is an option available to individuals who were acquitted and offenders who were convicted of criminal trespass in Virginia.

The significant difference between the two is that expungement applies to cases with no conviction, while sealing applies to cases with lower-level misdemeanor convictions. For expungement, the eligibility requirements include the following:

• The charges must be dismissed by the prosecutor or the court
• The defendant opted for a deferred or diversion program, which resulted in dismissal after compliance
• There was a not guilty verdict

For sealing of criminal trespass records in Virginia, these conditions must be met:

• The offense must be eligible for sealing
• The waiting period must have passed
• The applicant shows good conduct and evidence of rehabilitation
• All court-imposed conditions, including the sentence, probation, and fines, have been satisfied