Domestic Battery by Strangulation Law in Florida
According to § 784.041(2)(a), Fla. Stat., domestic battery by strangulation occurs when:
- A person knowingly and intentionally (and without consent) impedes the normal breathing or circulation of blood of a family or household member or of a person with whom they are in a dating relationship
- Creates risk of or causes great bodily harm by applying pressure on the throat or neck of the other person
- Blocks the nose or mouth of the other person
Some examples of strangulation include putting hands around the alleged victim’s neck, using a “sleeper hold” on the alleged victim, or putting a belt, rope, or scarf around the alleged victim’s neck or throat and tightening it—this type of choking amounts to a felony battery and domestic violence strangulation charge.
It’s also important to understand what is not domestic battery by strangulation. Florida courts have found that temporarily placing a pillow over a person while they’re sleeping, removing a sleep apnea breathing mask, holding a person’s head under water, and sitting on someone’s chest are not considered domestic battery by strangulation. That does not mean these actions are not crimes. However, they do not carry the increased penalties of domestic battery by strangulation.
Who May Be a Victim of Domestic Battery by Strangulation?
According to Florida domestic violence laws, domestic battery by strangulation is a domestic violence crime. That means that it must be committed against a “family or household member,” which includes:
- Former spouses
- Persons related by blood or marriage
- Persons residing together as a family
- Persons who have a child together regardless of marriage or household status
This also includes people in a dating relationship, which means they have a continuing and significant romantic or intimate relationship.
Penalties for Domestic Battery by Strangulation
Domestic battery by strangulation is a third-degree felony punishable by up to five years in prison and a fine of up to $5,000. You will also likely face probation, anger management counseling, and other requirements imposed by the court.
These penalties can be compared to regular domestic violence battery that does not involve strangulation, which is a first-degree misdemeanor. Domestic violence battery is punishable by up to one year in jail or 12 months of probation.
Withholding Adjudication for Domestic Battery by Strangulation
While some penalty guidelines allow the court to withhold adjudication so the alleged offender can complete alternatives to prison and avoid time behind bars, the Florida legislature recently amended the law to prohibit withholding adjudication for felony battery by strangulation.
There are very few exceptions to this, including if the state attorney makes a written request for the withholding of adjudication or if the court can reasonably justify it based on the circumstances or statutory mitigating factors.
This new legislation makes it unlikely that the prosecutor will allow you to make a plea bargain that includes withholding adjudication for domestic battery by strangulation. The court will not likely allow it either.
It’s essential to work with a skilled domestic violence attorney who understands Florida laws and can help you develop a strong defense or present solid arguments about why withholding adjudication is valid in your case.
Aggravating and Mitigating Factors in Domestic Battery by Strangulation Cases
As previously mentioned, if mitigating factors exist in your case, the court and prosecutor may be persuaded to support withholding adjudication. You may also be able to reduce your charges with mitigating factors. However, if there are aggravating factors, the penalties might be worse.
Aggravating factors are those that make the abuse more severe or harmful. Some common aggravating factors in domestic battery by strangulation cases include:
- Prior History of Violence: If you have a history of violence against the alleged victim or others, this is considered an aggravating factor. This is because it shows that you are more likely to be violent again and that the alleged victim is at increased risk of harm.
- Use of Weapons: If you used a weapon during the felony battery, this is also considered an aggravating factor. This is because it shows that you were more likely to intend to cause serious harm to the victim.
- Presence of Children: If children were present during the felony battery by strangulation, this is also considered an aggravating factor. This is because children can be traumatized by witnessing domestic violence and may also be at risk of being abused.
Mitigating factors are those that may reduce the severity of the abuse or the criminal charges against the abuser. Some common mitigating factors include:
- Self-Defense: If you acted in self-defense, this is considered a mitigating factor. This is because it shows that you were not the aggressor and were only trying to protect yourself from harm.
- Provocation: If the alleged victim provoked you, this may be considered a mitigating factor. However, it is essential to note that provocation does not justify abuse.
- Mental Illness: If you have a mental illness, this may be considered a mitigating factor. This is because it may explain why you acted violently.
- Regret and Remorse: If you show genuine regret and remorse for your actions, this may be considered a mitigating factor. However, it is important to note that this does not mean that you will be excused for your behavior.
It is important to note that aggravating and mitigating factors are not always clear-cut. In some cases, there may be both aggravating and mitigating factors present. The specific facts of each case will be considered by the court when determining the appropriate sentence.
How a Domestic Violence Lawyer Can Help Your Case
A domestic battery by strangulation charge is much more serious than many other domestic violence crimes. It’s important to work with a domestic violence lawyer who can challenge the accusations against you and prove you are innocent.
Getting Your Charges Dismissed
Domestic battery by strangulation requires specific elements to get a conviction. The prosecution must prove beyond a reasonable doubt that you met each of those requirements. If not, then the charges won’t stick.
A domestic violence attorney can help you challenge statements by the alleged victim and any eyewitnesses. There may have been a misunderstanding, or the alleged victim may have ulterior motives to making allegations against you. In any event, your attorney can work to get your charges dismissed.
Stand Up for Your Rights – Call Today
No matter what happened, you have rights that should be protected throughout the legal process. A domestic battery by strangulation conviction can result in serious penalties that will impact your entire life.