Domestic conflicts and trespassing charges often go hand in hand. A common scenario could be you and your spouse get into a fight, and you are ordered to leave the premises: what rights do you have to return home if you were explicitly told not to? Or, what if you suspect your spouse is cheating on you, and you sneak onto someone else’s property to peek into their window? Situations such as this can often arise, and at Arnold & Smith, PLLC an experienced attorney can not only help you avoid or defend against criminal trespassing charges, but also fight to minimize its impact on your family law case.

Types of Criminal, Non-domestic Trespass

In most counties, there are two types of criminal, non-domestic trespass: first degree trespass and second degree trespass. In both first and second degree trespass, the person who is allegedly trespassing must not have a legal right to be on the property, which is often a much contested issue in cases involving these charges. In some counties third-degree trespass has been created; it covers situations where someone trespasses to hunt, fish, trap, loiter, or drive ATV’s.

First Degree Trespass

First degree trespass is a Class 2 misdemeanor punishable by up to 60 days in jail. This can occur whenever a person, without permission, enters or stays on another’s secured or enclosed property while showing the intent to keep intruders out or enters or stays in their building. The concept in and of itself can be confusing, as can the way in which it differs from second degree trespass and domestic criminal trespass.

For example, two spouses, who live in different places, get into a fight while inside one of their homes. Whoever owns or controls the residence has the authority to tell the other to leave, and in the event they do not leave (or come back after being told not to), they could possibly be found to have trespassed in the first degree. However, one change in the facts might make domestic criminal trespass the more appropriate charge. If the acts occurred in a non-enclosed portion of the property, second degree trespass may be more appropriate.

Another example of when a first degree trespass has arguably occurred involves a tenant whose lease gives the owner of the property the ability to control who is allowed in the building. If the owner exercises their option and tells a specific friend of yours they either need to leave or are banned from coming over, and they ignore them and either stay or come back again, they have arguably committed a first degree trespass.

Some common issues that could arise in the context of a first degree trespass involve whether the premises are enclosed or secured, whether a structure is a building, whether the alleged party has entered or remained, and if the party who revoked the authority actually had the right to do so.

The reason that first degree trespass is treated more severely than second degree trespass is the same reason misdemeanor breaking and entering is treated more harshly than first degree trespass: each involves a higher level of intrusion than the other.

Second Degree Trespass

Second degree trespass, a Class 3 misdemeanor, occurs whenever a person enters or remains on the property of another without permission after either being told to get out or stay away by someone who has authority to say so or after ignoring signs alerting you not to enter.

If someone posts a “Do Not Enter” or “No Trespassing” sign on their property, and you ignore it and enter anyway, you could be charged with 2nd degree trespassing depending on where and in what manner that sign is posted. If someone who has the authority to tell you to leave an area tells you to and you ignore them, there likewise may be a factual basis to charge you with 2nd degree trespass.

Acts forming the basis of second degree trespass can be found in a variety of places, and each brings about their own complications. Imagine being at a bar, and a person is there who has clearly been served too many drinks. A manager or a bouncer comes over and politely ask them to leave, and if the drunk person refuses or comes back after being told not to, they have arguably committed the offense of second degree trespass. It does not have to happen at a bar, so long as the person who tells them to leave or not come back has the authority to say so.

Sentencing in second degree trespass cases has recently undergone some changes, and it depends entirely on the day you are alleged to have trespassed. If you are charged with second degree trespass for acts done before December 1, 2013, you are subject to one set of punishments, but if you are charged for acts on or after December 1, 2013, a different set of punishments apply to your case.

Given the similarities of these charges, as well as the many issues that can arise which determine which (if any) charge may fit your case, contact Arnold & Smith, PLLC. We have experienced criminal and family law attorneys who practice in several counties in North Carolina who have years of training and experience. We can help distinguish the differences in the different types of trespass, apply them to your case, and defend your rights in criminal and civil court.