A conviction for strangulation, especially related to domestic violence cases, could mean prison time, fines, mandatory restraining orders, and a permanent record.
Uncertainty about what the future might bring can be paralyzing, especially when recent changes to the law have made penalties for strangulation even harsher in Colorado.
Criminal defense attorney Christian Schwaner is a former prosecutor with over 20 years of legal experience who understands how the other side thinks and operates. This unique perspective has allowed him to build strong defense strategies for hundreds of clients in Colorado dealing with similar charges. Contact us today for a free consultation.
Understanding Strangulation in Domestic Violence Cases
Domestic assault by strangulation can involve spouses, parents, children, family members, or people involved in close relationships.
Strangulation is defined by law as intentionally restricting someone’s breathing or blood flow by applying pressure to their throat or neck or blocking their nose and mouth. The law distinguishes two types of strangulation: manual and ligature.
- Manual uses one or two hands, forearms, or kneeling on the person’s neck.
- Ligature is used with a band tightened by force, such as belts, cords, ropes, clothing, or bedding.
Strangulation Is Now a Felony Charge in Colorado
In Colorado, recent changes to the law have elevated strangulation from a misdemeanor to a felony charge in domestic violence cases. Changes in the severity of these charges make it easier for individuals to be charged based on accusations without substantial proof.
The issue in strangulation cases is the level of proof needed to establish the crime of what is construed as “real” strangulation. By lowering the threshold of evidence, this law leads to innocent people being wrongly convicted as well as serving a mandatory prison sentence for strangulation.
The new law could make the issue of false domestic violence allegations even worse. Increased penalties for a mandatory prison sentence can lead to many falsely accused people (mostly men) being arrested, prosecuted, and convicted.
What to Do if You’ve Been Accused of Strangulation in a Domestic Assault Case
When a charge of domestic violence is applied to a crime, a specific set of “victim’s rights” modifications automatically apply. These modifications include:
Mandatory Arrest
Colorado law requires an arrest when the police have probable cause to believe that domestic violence has occurred. This means that if someone accuses you of strangulation, and law enforcement believes there’s enough evidence to support the claim, they are required to arrest you. It’s crucial to remember your rights during this time: you have the right to remain silent and the right to an attorney.
Mandatory Restraining Order
Following an arrest for a domestic violence offense, including strangulation, a mandatory restraining order is typically issued. This order can prevent you from returning home or contacting the alleged victim. Violating this order can result in additional criminal charges.
Prohibition Against Having the Charges Dropped
Even if the alleged victim wants to drop the charges, Colorado law prohibits this in domestic violence cases. The prosecution proceeds with the case, regardless of the alleged victim’s wishes.
These circumstances can feel overwhelming and intimidating. But remember, an accusation is not a conviction. You are innocent until proven guilty and have the right to defend yourself against these charges.
Consequences of a Strangulation Conviction
A person commits assault in the second degree if they apply sufficient pressure to stop or restrict the breathing or circulation of blood of another person by blocking the nose or mouth of the other person, causing bodily injury. This is a class 4 felony.
Additionally, Colorado Revised Statutes define that if an assault in the second degree is committed under a sudden heat of passion, caused by a severe and highly provoking act of the intended victim and without time passing between the provocation and the injury, it is considered a class 6 felony.
Common Strangulation Assault Defenses
Defending against a strangulation charge requires a deep understanding of the law. At Christian A. Schwaner, P.C., we’ve successfully defended hundreds of clients using various strategies, including:
Self-Defense or Defense of Others
If you were protecting yourself or someone else from harm, this could be a valid defense. However, it’s important to note that the force used must be proportional to the threat faced. It’s also important to remember that this defense requires evidence. This is where a skilled attorney can make a significant difference.
Lack of Intent
Strangulation requires intent to restrict another person’s breathing or blood flow. This intent is a key element in the legal definition of the crime. It means that the person accused of strangulation must have knowingly and deliberately acted to restrict the victim’s breathing or blood flow. If it could be demonstrated that you did not intend to cause harm, this could potentially lead to charges being reduced or dismissed.
False Accusation
Regrettably, false accusations in domestic violence cases, including strangulation, are not uncommon. These accusations can stem from various circumstances, such as personal vendettas, custody battles, or simply out of spite. If false accusations can be proven, they can serve as a defense strategy. This involves demonstrating that the accuser had a motive to lie or misrepresent the facts of the case, such as gaining an advantage in a child custody dispute or inflicting harm on the accused out of vengeance.
Insufficient Evidence
The prosecution must prove beyond a reasonable doubt that you committed the crime. Your charges may be dropped if insufficient evidence meets this standard. This evidence can come in many forms, such as physical evidence, eyewitness testimony, or even your statements upon arrest. However, gaps in the evidence, inconsistencies, or empty claims can all contribute to the evidence being considered insufficient.
Heat of Passion
“Heat of Passion” is a legal concept that refers to an emotionally charged state of mind induced by anger, rage, or resentment. In this state, a person may act without considering the consequences. This might be used as a defense in cases of assault, including strangulation, where the defendant may argue that their actions were not premeditated but were a spontaneous response to provocation. A Heat of Passion defense could potentially reduce the severity of the charges or the resulting penalties.
Contact Us for a Free Consultation
Facing strangulation charges can be overwhelming. But remember, you don’t have to face it alone. Christian Schwaner can provide the experienced legal counsel you need during this challenging time.
If you are facing a strangulation assault charge, you need an attorney who is experienced in defending against serious domestic violence charges. Christian Schwaner is a former prosecutor who understands how the system works and the prosecution’s strategies against you. Reach out today for a free consultation.