Getting charged with criminal obstruction of breathing might sound like legal jargon, but trust me, it’s a serious matter that can turn your life upside down faster than you can say “I can’t breathe.” As someone who’s defended countless clients facing these charges in New York, I’ve seen how quickly a heated argument or domestic dispute can escalate into criminal charges that carry real jail time.
The experienced New York criminal defense team at Lebedin Kofman LLP stands ready to assist you through the intricate legal challenges of criminal obstruction of breathing accusations. Our attorneys bring both compassion and expertise to your case, recognizing the anxiety and uncertainty these charges often create. We strive to provide robust legal representation tailored to your specific circumstances. Reach out to us at (646) 663-4430 to schedule your free consultation and discover how we can help protect your rights and future.
What Exactly Is Criminal Obstruction of Breathing?
Under New York Penal Law § 121.11, criminal obstruction of breathing or blood circulation occurs when someone intentionally impedes another person’s ability to breathe or restricts their blood circulation. This typically happens by:
Applying pressure to someone’s throat or neck
Blocking their nose or mouth
Any combination of these actions
The key word here is “intentionally.” This isn’t about accidentally bumping into someone or a playful wrestling match that goes too far. The prosecution needs to prove you meant to restrict someone’s breathing.
The Legal Elements: What Prosecutors Must Prove
To secure a conviction, the District Attorney’s office must establish two critical elements beyond a reasonable doubt:
Intent to Impede: The defendant specifically intended to interfere with normal breathing or blood circulation. This separates accidental contact from criminal behavior.
Physical Act: The defendant either applied pressure to the victim’s throat/neck or blocked their nose/mouth.
Here’s what might surprise you: the law doesn’t require actual injury or complete impairment of breathing. Even a brief choking incident that doesn’t leave visible marks can result in criminal charges. I’ve represented clients where the alleged victim had no physical injuries, yet they still faced serious criminal prosecution.
Classification and Penalties
Criminal obstruction of breathing is classified as a Class A misdemeanor in New York, which means it’s the most serious type of misdemeanor you can face. The potential consequences include:
Jail Time: Up to one year in county jail
Probation: Up to three years of supervised probation
Fines: Up to $1,000
Criminal Record: A permanent criminal record that can affect employment, housing, and other opportunities
How This Differs from More Serious Charges
New York has a tiered system for these types of offenses. Criminal obstruction of breathing is actually the least severe, but the charges can escalate quickly:
Strangulation in the Second Degree (NY Penal Law § 121.12)
Classification: Class D Felony
Additional Elements: Causes stupor, loss of consciousness, or physical injury
Penalties: Up to 7 years in prison
Strangulation in the First Degree (NY Penal Law § 121.13)
Classification: Class C Felony
Additional Elements: Causes serious physical injury
Penalties: Up to 15 years in prison
The difference between a misdemeanor and a felony often comes down to the extent of injury or impairment caused. This is why having experienced legal representation from the start is crucial.
Real-World Examples
In People v. Figueroa (2013), the defendant was convicted after witnesses observed him applying pressure to his girlfriend’s neck, causing her to struggle for air. The case demonstrated that even brief acts of choking can result in criminal charges, especially when there are witnesses.
I’ve handled cases where clients were charged based on:
911 calls reporting domestic disputes
Visible marks on the alleged victim’s neck
Witness testimony from neighbors or family members
The alleged victim’s statements to police
Common Defenses
Every case is unique, but there are several defense strategies that can be effective:
Lack of Intent
If the contact was accidental or unintentional, this can serve as a complete defense. Maybe you were trying to restrain someone who was attacking you, or perhaps the contact occurred during a struggle where you were defending yourself.
Medical or Dental Purpose
The statute specifically exempts actions performed for valid medical or dental reasons. This defense rarely applies in typical criminal cases but can be relevant in certain circumstances.
Self-Defense
If you were protecting yourself from imminent harm, self-defense might justify your actions. The key is that your response must be proportionate to the threat you faced.
False Accusations
Unfortunately, I’ve seen cases where angry partners or family members make false accusations during heated disputes. These situations require careful investigation an d thorough examination of all evidence, including text messages, witness statements, and inconsistencies in the accuser’s story.
Insufficient Evidence
The prosecution must prove their case beyond a reasonable doubt. If there’s insufficient evidence to establish intent or the physical act, the charges may be dismissed or reduced.
The Domestic Violence Connection
Most criminal obstruction of breathing cases arise in domestic violence situations. In New York, this offense is classified as a family offense, which creates additional complications:
Concurrent Jurisdiction: Both family court and criminal court may have jurisdiction over your case
Orders of Protection: You may face immediate restrictions on contact with the alleged victim
Enhanced Penalties: Repeat domestic violence offenses can result in enhanced penalties
Immigration Consequences: For non-citizens, domestic violence convictions can trigger deportation proceedings
The dual court system means you might be fighting battles on multiple fronts simultaneously. Family court proceedings can impact your criminal case and vice versa.
What Happens After an Arrest
If you’re arrested for criminal obstruction of breathing, here’s what typically unfolds:
Immediate Custody: You’ll likely be held pending arraignment, especially in domestic violence cases.
Arraignment: Within 24-48 hours, you’ll appear before a judge who will inform you of the charges and set bail conditions.
Order of Protection: The court will almost certainly issue a temporary order of protection, restricting your contact with the alleged victim.
Discovery Process: Your attorney will begin gathering evidence, including police reports, witness statements, and any available video footage.
Why You Need Experienced Legal Representation
Criminal obstruction of breathing cases often involve complex factual scenarios and emotional testimony. The stakes are high, and the prosecution takes these cases seriously. Here’s why having skilled legal counsel matters:
Evidence Analysis: We examine all physical evidence, witness statements, and police reports for inconsistencies or procedural violations.
Witness Preparation: If your case goes to trial, proper witness preparation can make the difference between conviction and acquittal.
Plea Negotiations: Sometimes the best outcome involves negotiating a plea to a lesser charge or alternative sentencing arrangements.
Trial Experience: If your case goes to trial, you need an attorney who’s comfortable cross-examining alleged victims and challenging the prosecution’s evidence.
The Investigation Process
A thorough investigation is crucial in these cases. We typically examine:
Medical Records: Any medical treatment sought by the alleged victim
Photographs: Pictures of alleged injuries or the absence thereof
911 Recordings: The actual emergency calls can reveal important details
Text Messages and Social Media: Communications between parties before and after the incident
Witness Interviews: Speaking with anyone who may have observed the incident
Potential Collateral Consequences
Beyond the criminal penalties, a conviction can have lasting effects:
Employment: Many employers conduct background checks, and a violent crime conviction can limit job opportunities.
Professional Licenses: Doctors, lawyers, teachers, and other licensed professionals may face disciplinary action.
Child Custody: Family court judges consider domestic violence convictions when making custody determinations.
Housing: Landlords may refuse to rent to individuals with violent crime convictions.
Immigration Status: Non-citizens face potential deportation for domestic violence-related convictions.
Recent Legal Developments
New York has been strengthening its approach to strangulation and choking offenses. The legislature recognized that non-fatal strangulation is a significant predictor of future domestic violence homicides. Studies show that domestic violence victims who have been strangled are 750% more likely to be killed by their abuser.
This statistical reality has led to:
Enhanced training for law enforcement
Specialized prosecution units
Increased penalties for repeat offenders
Better victim services and support
Building Your Defense Strategy
Every case requires a tailored approach. When I represent clients facing these charges, we start by examining several key areas:
The Relationship Dynamic: Understanding the relationship between the parties helps contextualize the alleged incident.
Prior History: Any history of domestic violence calls or orders of protection can impact the case.
Physical Evidence: The presence or absence of injuries, their location, and their severity all matter.
Witness Credibility: Evaluating the reliability and motivations of all witnesses, including the alleged victim.
Police Conduct: Ensuring law enforcement followed proper procedures during the investigation and arrest.
Wha