Domestic battery by strangulation is a very aggressively prosecuted felony battery charge in Florida and the Tampa Bay area. Aside from possible prison time, you are also facing other collateral consequences that come with a felony conviction and a conviction for a violent crime. You could potentially lose your right to vote until you have completed all terms of your sentence, lose your right to possess a gun or firearm, lose your job and have a hard time renting an apartment or finding new employment.
Domestic battery by strangulation is defined in Florida Statute 784.041(2)(a) as impeding “the normal breathing or circulation of the blood of a family or household member or of a person with whom he or she is in a dating relationship, so as to create a risk of or cause great bodily harm by applying pressure on the throat or neck of the other person or by blocking the nose or mouth of the other person.” Simply stated you are guilty of domestic battery by strangulation if you intentionally choked or strangled a family member or a significant other against their will.
It is a specific intent crime that requires that the prosecutor proves that you had the intent to choke someone. It is not enough that the prosecutor can prove that you put your hands on someone else’s neck, the prosecutor has to prove that you actually cut off someone’s air flow either by applying pressure to their throat or by blocking their nose or mouth.
Battery by strangulation falls under the umbrella of domestic battery. This means that in addition to proving that you choked someone, the prosecutor has to prove that the alleged victim was one of the following:
A family member
Someone you currently live with or someone you used to live with
A person you have a child in common with
Someone you are currently dating.
Battery by strangulation is a 3rd degree felony and is punishable by a combination of the following:
5 years in prison
5 years on probation
Your actual sentence in Florida will depend on what you score under the Florida sentencing guidelines. Each offense is given a severity level and is assigned a certain number of points. Battery by strangulation is a level 6 offense and assigned 36 points. If you score more than 44 points, the minimum allowable sentence is some sort of prison sentence. This means that you are 9 points short of scoring prison time if charged with this crime. This also means that any other factors, such as additional charges, prior convictions or possible enhancements based on the facts of the case could easily put you over the threshold and lead to a prison sentence.
One type of defense is that the prosecution is not able to prove all of the elements of the charge. For example the prosecutor is unable to prove that:
Your actions were willful and intentional
You did not cut off the air flow of the alleged victim (If the victim was able to talk, yell or scream during the incident, the airflow was likely never cut off and you would be not guilty.) • The alleged victim was not a household member or you were not in a dating relationship
Even if the prosecutor can prove all of the elements of the charge, a knowledgable criminal defense attorney can help you successfully defend against battery charges. Other potential defenses include:
The alleged victim may have consented to you touching them in this way either explicitly or in an implied way. Implied consent for example would exist in situation were you were trying to perform a medical procedure. The statute for battery by strangulation explicitly states that “[t]his paragraph does not apply to any act of medical diagnosis, treatment, or prescription which is authorized under the laws of this state.”
As for any other battery charge, self defense is a full defense to these charges. In order to claim self defense, you would have to show that you reasonably feared the alleged victim was trying to touch you in an unwanted way.
You are also authorized to defend others if such action was reasonably necessary to help the other person escape from unwanted harm.
This charge is a domestic battery charge and therefore oftentimes involves complicated domestic issues, such as divorces or fights among spouses or family members. Sometimes, the stressful nature of those situations, can lead to people making false allegations in order to use a potential conviction or arrest against the other party in court in a divorce or custody proceeding. Kerstin Wade is an experienced and aggressive criminal defense attorney who is familiar with these issues and who can help you successfully defend against these and other domestic battery charges.
If you or a loved on is charged with domestic battery by strangulation, call us today at 813-401-0130 to speak with Kerstin about your case and any potential defenses.