As a criminal defense attorney practicing in Georgia, one of the most serious and emotionally charged charges I see is home invasion. This crime strikes at the heart of what people value most: their safety and sanctuary. When someone is accused of home invasion, the stakes are high—not just legally, but personally. Below, I’ll unpack what Georgia law says about home invasion, what the prosecution must prove, and how a defense lawyer like me approaches these cases.

Under Georgia law, home invasion is codified in O.C.G.A. § 16-7-5. There are two degrees of home invasion: first degree and second degree.

Here is a breakdown:

1. First-Degree Home Invasion
   • The defendant must enter someone’s dwelling without authority.
   • At the time of entry, someone else must be authorized to be present (i.e., the house is occupied).
   • The defendant must have the intent to commit a forcible felony.
   • The defendant must be in possession of a deadly weapon or instrument that, if used offensively, is “likely to or actually does result in serious bodily injury.”
   • Penalties: conviction can lead to life imprisonment, plus a fine of up to $100,000.
2. Second-Degree Home Invasion
   • The requirements are similar: unauthorized entry into an occupied dwelling, plus possession of a deadly weapon.
   • But here, the intent is to commit a forcible misdemeanor, not a felony.
   • Penalties: 5–20 years in prison, and up to a $100,000 fine.
   • Importantly: Georgia law allows for probation in second-degree home invasion cases at the judge’s discretion.

From a defense perspective, each element of the statute is a potential battleground. Here’s why:

1. “Without Authority”
   • The prosecution must show that the defendant did not have permission to be inside the dwelling. Sometimes, what “without authority” means isn’t crystal clear: were they actually trespassing, or did the occupant implicitly or mistakenly give permission?
   • As your defense counsel, I would scrutinize how the State proves lack of permission: witness testimony, surveillance, forensic evidence, or even inconsistencies in the prosecution’s narrative.
2. “Intent to Commit a Forcible Offense”
   • This is specific intent: it’s not just about entering; it’s about entering with a criminal purpose.
   • A big challenge for the State: they usually don’t have a direct confession of “I came here to commit X crime.” Instead, they rely on circumstantial evidence (like possession of tools, the way someone entered, statements, prior criminal history, etc.).
   • As a defense attorney, I look for ways to undermine that inference: maybe the tools were innocently carried, maybe the “weapon” wasn’t really capable of serious bodily injury, or maybe the client had a non-criminal reason for being there.
3. “Possession of a Deadly Weapon or Instrument”
   • The statute requires that at the time of entry the person is in possession of a weapon or instrument likely to cause serious bodily harm.
   • Defense sometimes challenges whether what the State calls a “deadly weapon” really qualifies under the law, or whether the timing of “possession” aligns with the entry.
4. Proof of Occupancy
   • The dwelling must have someone authorized “with authority to be present” inside.
   • The State must establish not just that a building was a dwelling, but that it was occupied at the time. That can be contested—especially if the resident’s testimony or forensic evidence (fingerprints, footprints) is murky.

As you can see, there are viable defenses to a home invasion charge- you just need a zealous advocate to explore them. If you are charged with home invasion in Fulton County, call our office at 404-581-0999 for a free consultation.