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Assault – Impede Breath – Texas Criminal Defense Lawyer

Domestic violence assault – impede breath is a serious charge in Texas that enhances a Class A Misdemeanor assault to a 3rd degree felony, punishable by 2-10 years in prison. This post aims to provide guidance for folks seeking information, but it is not legal advice. You should always seek the advice of a criminal defense attorney when facing felony charges, especially when it involves a crime of violence. ATX Legal handles all assault offenses from misdemeanor simple assault to first degree felony aggravated assault. If you have been charged with assault in Texas and would like a no-cost consultation, please fill out our contact form for a free consultation.

What is an Enhancement to Assault?

Under Texas law, an enhancement is an extra element to the crime which increases the severity of the criminal charges. In the case of Assault – Strangulation, the prosecutor must prove all of the elements of assault, and also must show that the person accused of assault impeded normal breathing by covering a person’s nose, a person’s throat, or by applying pressure to the alleged victim’s neck. You can find the requirements in Texas Penal Code 22.01(b)(2)(B). The enhancement applies when the accused “intentionally, knowingly, or recklessly imped[es] the normal breathing or circulation of the blood of the person by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth. This is on top of the normal elements for assault.

Penalties for Assault Strangulation in Texas

If convicted, the minimum punishment for a third degree felony is 2 years in prison, while the maximum can be up to 10 years. Additionally, this would be a felony offense on the accused criminal history, so all the limitations of being a convicted felon would incur. If the alleged victim is a family member, the family violence finding would also apply to the assault.

Defenses to Assault – Impede Breath

Often, the strategy when dealing with FV impede breath cases is similar to dealing with misdemeanor assault.  If possible, it is important to get the cooperation of the alleged victim to help get the case dropped and avoid a FV finding.  If we don’t have cooperation, then we focus on what the evidence actually shows, and poke holes in that evidence. 

Criminal defense lawyers do not have to prove their case. It is enough to show that the prosecution’s case does not hold up. FV cases are very often weak cases for the prosecution.  But the stakes are significantly raised when talking about a 3rd degree felony, so you have to proceed with caution.

Can the Impede Breath Enhancement be Dropped from the Assault Charge?

Yes, the enhancement can and often is dropped from the assault as part of a plea bargain with the prosecutor. Whether this is an available option in your case is completely dependent on the specific facts of the assault, and the lawyers handling the case. A Class A misdemeanor assault might still include a family violence finding, so always listen to your criminal defense attorney carefully before accepting any plea.

Assault charges are difficult for everyone. Violence is never the answer, but everyone is entitled to a fair defense.

Assault vs. Aggravated Assault in Texas

Don’t confuse the impede breath enhancement for aggravated assault, which is a different charge from simple assault with an enhancement. Aggravated assault can be charged when there is serious bodily injury or use of a deadly weapon while committing the assault. Aggravated assault can be a third degree, second degree, or even first degree felony, depending on the specific circumstances of the assault.

Austin Family Violence Lawyer – Strategies for Handling Assault by Strangulation Charges

The prosecutor will need to show evidence beyond a reasonable doubt of the assault and the strangulation.  Although there has been some pseudoscience out there claiming that strangulation can occur without leaving any evidence, if the prosecutor wants to go forward without any marks, physical evidence is needed in most cases.

If instead, the only evidence of strangulation is a statement by the alleged victim, the prosecutor will often offer to drop the impede breath enhancement, dropping the charge to a misdemeanor. Whether you want to accept the misdemeanor plea at that time will depend on the other evidence the State can bring to prove an assault.  Sometimes you will still want to reject this offer because even a misdemeanor family violence charge carries a family violence finding.

Unfortunately, when the assault is charged as a strangulation case, it gives the prosecutor more leverage in plea negotiations.  When it is initially charged as a misdemeanor, you have little to lose by taking the case to trial.  With an impede breath case, taking it to trial can mean risking a felony.  Therefore, a plea to a misdemeanor might make sense in more cases.

A plea agreement for an assault charge can be beneficial, especially if it reduces the charge from a felony to a misdemeanor.

What if I’m Falsely Accused of Assault?

Even more common than other family violence charges, an assault – impede breath charge is often the result of false accusations.  The reason is that when making the arrest, police officers have a standardized list of questions they ask the alleged victim. 

One of the questions is – did he/she attempt to cover your mouth or impede breath.  If the alleged victim says yes, this can be enough to up the charge to a third degree felony, even without corroborating evidence. If the alleged victim of the assault is angry at the time of questioning, they may exaggerate the events when speaking to the police.

How ATX Legal Can Help If You’ve Been Charged with Assault in Austin, TX

If you’ve been charged with assault in Texas, you will need to mount a strong criminal defense. Assault charges can often be handled with a reduction to misdemeanor or even a dismissal, but if handled incorrectly, it could mean a lengthy prison sentence. ATX Legal has been handling Central Texas assault cases for many years with excellent results.

Arrange a Free Consultation With an Experienced Austin Criminal Defense Lawyer

ATX Legal handles assault charges in Austin, Travis County, Williamson County and Hays County. It’s easy to arrange a consultation. Just text “consult” to 512-677-5003, or fill out a contact form.

505 West 12th Street, Suite 200 Austin Texas 78701

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