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Domestic Battery by Strangulation

Florida recently enacted a separate criminal offense for domestic violence cases involving 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.

By way of comparison, a domestic violence battery not involving strangulation, is punishable as a first degree misdemeanor.

In many of these cases involving strangulation, the prosecutor will seek jail time or prison time at sentencing followed by probation to complete domestic violence counseling.

Law enforcement officers often make an arrest for this more serious 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. Although the charges are serious, important defenses exist to fight the charges.

Attorney for Domestic Violence by Strangulation in Tampa, FL

If you are under investigation for any type of domestic violence allegation, it is important 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 aggressively 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 to represent clients accused of domestic violence battery by strangulation in Pasco County, FL.

Call (813) 250-0500.


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

Under Florida Statute § 784.041(2)(a), Domestic Battery by Strangulation, the prosecutor must 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, the 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:
    • in a dating relationship with the victim, which means a continuing and significant romantic or intimate relationship; or
    • a family or household member of the victim, which includes spouse, former spouse, person related by blood or marriage, live-in lovers, former live-in lovers, 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 under water, 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 effectively risk great bodily harm. 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 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 Strangulation Domestic Violence

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.

With the exception of people who have a child in common, the family or household members must be currently residing together or must have in the past resided together in the same single dwelling unit.

Additionally, 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.


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 contains definitions for “family or household members’ and “dating relationship.”

The Dangers of Strangulation – Visit the website of the National Domestic Violence Hotline, 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 form of violence is particularly serious. 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 more about why research shows that strangulation is a significant predictor for future lethal violence. The article provides advice for women on how to document the abuse in a police report and why seeking help immediately is important.


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, P.A. 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 a variety of 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, March 22, 2019.

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