Domestic Battery by Strangulation

Florida enacted a separate criminal offense for domestic battery by strangulation. The statute makes non-fatal choking or strangulation a third-degree felony punishable by up to five (5) years in Florida State Prison.

In some strangulation cases, the prosecutor might seek jail or prison time followed by probation to complete domestic violence counseling.

By comparison, a domestic violence battery not involving strangulation is far less severe and punishable as a first-degree misdemeanor punishable by up to twelve (12) months probation.

Law enforcement officers often make an arrest for this more severe offense even though no physical evidence supports the accusation and no apparent injury occurred.

Often the word of the complaining witness is enough to initiate the prosecution. The most common examples of strangulation include the defendant putting their hands around the victim’s neck, putting the victim in a “sleeper hold,” or using a belt, rope, necklace, or scarf to strangle the victim.

Although the charges are serious, essential defenses exist to fight the charges.

Attorney for Domestic Violence by Strangulation in Tampa, FL

If you are under investigation for any domestic violence allegation, it is essential not to make any statements to law enforcement. Instead, discuss the case with a criminal defense attorney in Tampa, FL, at Sammis Law Firm.

After you hire an attorney, mitigating evidence can be presented to law enforcement or a prosecutor with the State Attorney’s Office. Related charges can include battery or felony battery under Florida Statute 784.041(1)(a) or (1)(b).

Any charge of domestic battery by strangulation in Florida is serious. Contact us to speak with a criminal defense attorney at the Sammis Law Firm in Tampa, FL, who can defend you against these charges.

Contact us to talk with a domestic violence defense attorney in Tampa, FL, at the Sammis Law Firm. We also have a second office in New Port Richey.

Call (813) 250-0500.

Elements of Florida Statute § 784.041(2)(a)

Under Florida Statute § 784.041(2)(a), F.S.S., the statute for Domestic Battery by Strangulation requires the prosecutor with the State Attorney’s Office to prove the following elements beyond all reasonable doubt:

  • The defendant intentionally and knowingly impeded the normal breathing and circulation of the blood of the victim against her will by applying pressure on the throat or neck of the alleged victim or by blocking the nose or mouth of the victim;
  • By doing so, Defendant created a risk of great bodily harm to the victim; and
  • The defendant was in a domestic relationship with the alleged victim under either of the following circumstances:
    • the defendant was in a dating relationship with the victim, which means a continuing and significant romantic or intimate relationship; or
    • the defendant was a family or household member of the victim, including a spouse, former spouse, a person related by blood or marriage, live-in lovers, former live-in lovers, and parents with a child in common.

Not every act of applying pressure or blocking breathing would violate the statute. United States v. Dixon, 874 F.3d 678, 681 (11th Cir. 2017).

Incidents such as temporarily placing a pillow over a sleeping family member’s nose, mouth, or throat, removing their sleep apnea breathing masks, holding their head underwater, or sitting on their chest would either be too insignificant to actually impede breathing or circulation or would require something more prolonged and violent to risk great bodily harm effectively. Id. at 682.

In Dixon, the court determined that Florida’s domestic battery by strangulation statute qualifies as a “crime of violence” for the purposes of the sentencing guidelines because the act must impede breathing or circulation in such a way as to cause or risk “great bodily harm.” Id. The defendant must also “knowingly and intentionally” impede breathing or blood circulation. Id.

Since strangulation is necessarily classified as a crime of violence, a conviction comes with serious consequences, especially if you are not a U.S. Citizen or have immigration issues.

Florida Jury Instructions for Domestic Violence Strangulation

The Florida Supreme Court adopted the standard jury instructions for domestic violence by strangulation in 2008. Those jury instructions also define the term “family or household member” to include any of the following:

  • spouses (husband or wife);
  • former spouses (ex-husband or ex-wife);
  • persons related by blood or marriage (parents, children, step-parents, step-children, siblings, or half-siblings);
  • persons who are presently residing together as if a family or who have resided together in the past as if a family (straight couples and gay or lesbian couples); and
  • persons who are parents of a child in common regardless of whether they have been married.

Except for people with a child in common, the family or household members must reside or have previously resided together in the same single dwelling unit.

Domestic violence also includes individuals involved in a dating relationship, and the standard jury instructions define “dating relationship” to mean “a continuing and significant relationship of a romantic or intimate nature.”

At trial, the judge may also change these instructions or read additional instructions depending on the facts of the case and the issues raised by the criminal justice attorneys.

Read more about how we represent clients accused of domestic violence battery by strangulation in Pasco County, FL.

Can The Court Withhold Adjudication for Battery by Strangulation?

The Florida legislature recently amended 775.08435, F.S., to add additional circumstances in which the court is prohibited from withholding the adjudication of a defendant charged with felony battery by strangulation under Section 784.041(2)(a), F.S., unless:

  • the state attorney makes a written request for the adjudication to be withheld, or
  • the court makes written findings that the withholding of adjudication is reasonably justified based on the circumstances or statutory mitigating factors.

The new legislation makes it less likely the prosecutor would negotiate a plea bargain offering a withhold of adjudication for battery by strangulation. The legislation makes it less likely that the court would agree to withhold adjudication at sentencing.

Even if the court withholds adjudication, the criminal history record cannot be sealed.

Additional Resources

Florida Statute 784.041 – Visit the Florida Senate website to learn more about Florida Statute Section 784.041 for Felony Battery and Domestic Battery by Strangulation. The statute defines “family or household members” and “dating relationship.”

The Dangers of Strangulation – Visit the National Domestic Violence Hotline website, a non-profit organization as a component of the Violence Against Women Act (VAWA). Since the organization was established in 1996, it has provided tools and support to enable victims to find safety and live without abuse. In this article explaining the dangers of strangulation, you can learn more about why this violence is severe. Symptoms of brain damage and other forms of physical injury can take hours, days, or even weeks to develop after an incident of strangulation. Learn why research shows that strangulation significantly predicts future lethal violence. The article advises women on documenting the abuse in a police report and why seeking help immediately is essential.

Finding a Lawyer for Domestic Battery by Strangulation

Domestic battery by strangulation is a serious criminal offense under Florida law. If you were arrested in the Tampa Bay area, including Hillsborough County, Pinellas County, Pasco County, or Hernando County, contact Sammis Law Firm to discuss your case.

A domestic battery by strangulation sentence often involves jail time followed by probation with special conditions that the person accused complete domestic violence counseling, including the batterers intervention program (BIP) offered in most counties in the State of Florida.

Our criminal defense attorneys in Tampa, FL, are experienced in representing clients charged with various violent crimes, including domestic violence battery.

From our offices in New Port Richey, we represent clients charged with violent crimes in Pasco County, FL.

Call (813) 250-0500 today for a free consultation.

This article was last updated on Friday, May 12, 2023.