Domestic Battery by Strangulation


SHORSTEIN, LASNETSKI, & GIHON
helps people defend against Domestic Battery by Strangulation allegations

Domestic Battery by Strangulation is a relatively newly added law in the State of Florida.  The legislative intent behind the law was to enhance the potential sentence for a person who commits battery by choking the victim.  Sometimes, however, people are wrongfully arrested under this statute. 

What is a domestic battery by strangulation?

Domestic Battery by Strangulation is defined in Florida Statute 784.041(2)(a).  To prove the crime of Domestic Battery by strangulation, the State must prove:

1.   You knowingly and intentionally impeded the normal breathing or circulation of the blood of the victim against his or her will by applying pressure on the throat or neck of the victim or by blocking the nose or mouth of the victim.

2.   In so doing, you created a risk of great bodily harm to the victim or caused great bodily harm to the victim.

3.   You were a family or household member of the victim or in a dating relationship with the victim.

“Family or household member” means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.

"Dating relationship" means a continuing and significant relationship of a romantic or intimate nature.

What if my family or household member wants to drop the charges?

A listed victim does not have the power or authority to drop charges.  Only the State Attorney's Office can drop or file charges.  Every State Attorney's Office makes their own policies on how they handle domestic battery cases when the listed victim wants to drop the charges.  Most prosecutors will not drop charges simply because the listed victim does not want prosecution.  They typically will drop charges only if they do not believe they can prove the case.  It is important to find an attorney who is experienced in assessing a domestic battery case, investigating and obtaining evidence and information and presenting that evidence and information to the prosecutor. 


What are the possible defenses to domestic battery by strangulation?

Every case is different, but some common defenses to domestic battery by strangulation allegations are:
No risk of great bodily harm or great bodily harm

Many domestic battery by strangulation cases that our firm has handled has involved an arrest with no allegation that there was a risk of great bodily harm or actual great bodily harm.  Many times, if there is any allegation that the listed victim's mouth or nose was covered at any point, the arrest is made for domestic battery by strangulation, rather than simple domestic battery.  The State must prove that there was a risk of great bodily harm or actual great bodily harm.  This statute was designed to enhance the sentence for those convicted of choking the listed victim, yet many people are being arrested for minimal conduct that does not fall under the enhanced statute.

Self Defense


Many domestic battery cases involve minimal contact and a mutual argument, often involving alcohol.  Many times, it is the listed victim who is most vocal in wanting the State to drop the charges.  Many listed victims are very vocal that they were the aggressors and that the person charged was defending themselves. In other cases,  the listed victim says that it was a mutual argument fueled by alcohol.  There is often evidence that the person charged was acting in self defense. 

Evidence

Clients often have evidence that either shows that they are not guilty or that a listed victim, police officer or witness are not telling the truth.  This may be in form of recordings, witness testimony, photographs, physical evidence or anything that disputes what the State witnesses are saying. 


Lack of Evidence

It is the State's burden to prove that you are guilty beyond a reasonable doubt.  A reasonable doubt can arise from a lack of evidence.  Often, there are no independent witnesses in domestic battery cases. Listed victims may not be cooperative with the prosecution. There may be no visible signs of injury.  All of these issues and more may factor into whether the State can prove the case.


Conflict in Evidence

As mentioned above, many domestic battery cases involve alcohol use by both parties.  Alcohol impairment can effect a listed victim's memory and perception of events.  Oftentimes, listed victims dispute that they told officers facts that are in the police report.  Multiple witnesses may give conflicting statements about what they saw or heard.  Photos or physical evidence may not be consistent with the statements of witnesses or the listed victim.  All of these and more conflicts in the evidence can lead to reasonable doubt. 


What are possible consequences of a domestic battery by strangulation?

The consequences of any plea to domestic battery by strangulation are severe. 

Possible prison - The maximum sentence for a domestic battery is five years in prison, as a third degree felony. 

Probation and Batterer's Intervention Classes - For first time offenders, the minimum sentence a judge can render is probation which includes intensive batterer's intervention classes that last 26 weeks or more.  In addition to jail, the judge can order other restraints on your liberty including restrictions on contact with family members, fines, court costs, community service, and more. 

Restrictions on firearms - A domestic battery can infringe upon your right to own, possess and purchase a firearm.

No sealing or expunging - whether you receive a withhold of adjudication or are adjudicated guilty of a domestic battery, you would not be eligible to seal or expunge your record.  This means that this arrest and your case information would be available to the general public on the internet and through background checks.

CALL US!

Allegations of domestic abuse can have very serious consequences, whether the allegations are true or not.

If you have been accused of
Domestic Battery by Strangulation

 CALL US:

Shorstein, Lasnetski, & Gihon

904-642-3332 (Jacksonville)
407-228-2019 (Orlando)
or
 
contact us online.




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