What Is Battery By Strangulation?

Battery by strangulation is serious a domestic violence offense. If you are being accused of it, it is important to contact an attorney right away.

Battery by strangulation laws vary state-by-state. Here, we will cover Florida and New York.

Battery by strangulation in Florida

In Florida, Florida Statute § 784.041 defines domestic battery by strangulation as an act where a person, knowingly and intentionally, against the will of another, impedes the normal breathing or circulation of the blood of a family or household member or 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.

Who is a family or a household member?

It means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together like family or who have resided together in the past like 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.

What is a dating relationship?

A dating relationship means a continuing and significant relationship of a romantic or intimate nature.

What is the penalty for battery by strangulation?

In Florida, domestic battery by strangulation is considered a felony of the third degree. As such, the penalty is a term of imprisonment not exceeding 5 years and/or a fine not exceeding $5000, or may be aggravated to a higher penalty in cases of violent career criminals, habitual felony offenders, and three-time felony offenders.

Battery by strangulation in New York

In New York, battery is not a crime anymore but an intentional tort. Still, the domestic violence act of strangulation is punishable under NY Penal Law §§ 121.11, 121.12, and 121.13.

Under NY Penal Law § 121.11, the criminal obstruction of breathing or blood circulation occurs when a person, with intent to impede the normal breathing or circulation of the blood of another person, applies pressure on the throat or neck of such person or blocks the nose or mouth of such person. Here, criminal obstruction of breathing or blood circulation is a class A misdemeanor and does not require physical injury as an element of the offense.

Under NY Penal Law §121.12, strangulation in the second degree occurs when there is the criminal obstruction of breathing or blood circulation with the additional element of causing stupor, loss of consciousness for any period of time, or any other physical injury or impairment. Strangulation in the second degree is a class D felony.

Under NY Penal Law § 121.13, when criminal obstruction of breathing or blood circulation causes serious physical injury to the other person, strangulation in the first degree occurs, which is considered a class C felony. There is serious physical injury when it creates a substantial risk of death, causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.

New York case law has applied strangulation to domestic violence cases. When no physical injury has resulted, especially when strangulation only occurred for a few seconds, the defendant can be found guilty of Penal Law § 121.11, criminal obstruction of breathing or blood circulation. People v. Figueroa, 40 Misc.3d 1010 (NY City Court of Rye, 2013).

However, when medical reports by a treating physician show that the victim has suffered injuries, such as cuts, scratches, and abrasions, the defendant can be convicted of strangulation in the second degree and even assault in the third degree, even if the victim recants and withdraws her testimony due to reconciliation with the defendant. People v. Carte, 976 N.Y.S.2d 594 (2013).

Medical and dental treatment as a defense

Both in New York and Florida, medical and dental treatment are defenses to strangulation.

Other defenses

Strangulation is a domestic violence offense, which usually occurs, not in public, but in the comfort of one’s home without any witnesses. It can be difficult to prove, especially when there are no witnesses and no visible injuries. Still, an allegation of strangulation is a serious matter which can result to a criminal record. It is important to contact an attorney at the first instance of allegation to ensure that you are legally represented when explaining your side to the police or the prosecutor. Bare allegations, unsubstantiated without witnesses or visible injuries, can be caused by a jilted partner seeking for revenge. There are always two sides to a story and it important that you are able to share your side so the prosecutor can decide not to pursue a case.

Should you need assistance in your defense against battery by strangulation, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can send us an email at [email protected] or call us at 212-233-1233.

Attorney Albert Goodwin

Law Offices of
Albert Goodwin, PLLC
31 W 34 Str, Suite 7058
New York, NY 10001

Tel. 212-233-1233

[email protected]

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