Nebraska Assault by Strangulation or Suffocation Penalties

In Nebraska, assault by strangulation penalties start at a Class IIIA felony carrying up to three years in prison and a fine of up to $10,000 for a first offense, and climb to a Class IIA felony with up to twenty years in prison when the case involves a dangerous instrument, serious bodily injury, or a prior conviction under the same statute. If the victim is pregnant, the classification goes up another level. Any conviction also triggers a lifetime bar on possessing firearms under federal law and a state ban that makes future possession its own serious felony.

First-Offense Penalty

A standard first offense under Nebraska Revised Statute 28-310.01 is a Class IIIA felony.¹ The sentencing range includes:²

Up to three years in prison, with no mandatory minimum.
Up to eighteen months of post-release supervision after any prison term.
A fine of up to $10,000, which a judge may impose instead of or in addition to prison.

Because there is no mandatory minimum at the Class IIIA level, a first-time defendant is legally eligible for probation. Nebraska bars probation only when a felony carries a mandatory minimum sentence.² Whether a judge grants it depends on the facts, the defendant’s record, and the harm to the victim.

When the Charge Becomes a Class IIA Felony

Three circumstances push the offense from a Class IIIA to a Class IIA felony:¹

The defendant used or attempted to use a dangerous instrument during the offense.
The victim suffered serious bodily injury, meaning an injury involving a substantial risk of death, serious permanent disfigurement, or prolonged loss of function in any body part.³
The defendant has a prior conviction under the same strangulation statute, regardless of the circumstances of the new offense.

A Class IIA felony carries up to twenty years in prison with no mandatory minimum.² Probation technically remains available because there is no mandatory floor, but courts rarely grant it when a weapon or serious injury is in play.

Enhancement When the Victim Is Pregnant

Nebraska Revised Statute 28-115 raises the classification by one level when the victim of the offense is pregnant.⁴ A base Class IIIA felony becomes a Class III felony; an aggravated Class IIA felony becomes a Class II felony.

The real impact shows up at the top tier. A Class III felony carries up to four years in prison, two years of post-release supervision, and a fine of up to $25,000. A Class II felony carries one to fifty years in prison with a one-year mandatory minimum, and that minimum eliminates probation eligibility.² The prosecution must allege and prove the pregnancy beyond a reasonable doubt for the enhancement to apply.⁴

Lifetime Firearm Consequences

A conviction under the strangulation statute triggers firearm restrictions at both state and federal levels, and these outlast any prison sentence.

Nebraska bars anyone previously convicted of a felony from possessing a firearm, a knife, or brass or iron knuckles. A first violation of that prohibition is itself a Class ID felony punishable by three to fifty years in prison; a second is a Class IB felony. The disqualifying felony can come from any court in the United States, its territories, or the District of Columbia.⁵

Federal law goes further. Under 18 U.S.C. 922(g)(1), anyone convicted of a crime punishable by more than one year in prison is barred from possessing firearms or ammunition.⁶ Both the Class IIIA and Class IIA versions of this offense cross that threshold, so the federal ban attaches even to a defendant who serves no prison time at all. When the case involves a domestic relationship, the restriction is permanent with no reinstatement path.

What the State Has to Prove

The penalties attach only on proof of the elements, and two features of the statute matter for how easily that threshold is met. The prosecution does not need to show a visible injury; the statute specifies that an offense occurs “regardless of whether a visible injury resulted.” And there is no duration requirement, so a brief compression of the neck or momentary covering of the airway can satisfy the elements. The victim does not need to have lost consciousness.¹

What the state does have to prove is intent. The defendant must have knowingly and intentionally restricted the victim’s breathing or blood flow by applying pressure to the throat or neck, or knowingly and intentionally blocked the ability to breathe by covering the mouth and nose.¹ Accidental contact during a struggle does not satisfy the statute.

The Medical Procedure Defense

The statute recognizes one affirmative defense: that the act was the result of a legitimate medical procedure.¹ The exception is narrow and designed for healthcare providers whose procedures involve the airway. As an affirmative defense, the burden sits with the defendant to raise and support it, rather than with the prosecution to disprove it.

1
Justia. Nebraska Code 28-310.01 – Assault by Strangulation or Suffocation; Penalty; Affirmative Defense
2
Nebraska Legislature. Nebraska Code 28-105 – Felonies; Classification of Penalties; Sentences; Where Served; Eligibility for Probation
3
Nebraska Legislature. Nebraska Code 28-109 – Terms, Defined
4
Nebraska Legislature. Nebraska Code 28-115 – Criminal Offense Against a Pregnant Woman; Enhanced Penalty
5
Nebraska Legislature. Nebraska Code 28-1206 – Possession of a Deadly Weapon by a Prohibited Person; Penalty
6
Office of the Law Revision Counsel. 18 USC 922 – Unlawful Acts