Domestic Violence Allegations in Michigan

9/5/2011 Michigan state law and many local ordinances punish assault or assault and battery as a misdemeanor offense subject to up to 93 days in jail and/or a maximum $500 (five hundred dollar) fine.  The assault or assault and battery constitutes domestic violence and/or domestic assault when any of the following also exists: 1) the complaining witness is a spouse or former spouse; 2) the complaining witness has a child in common with the Defendant; 3) the complaining witness has or had a dating relationship with the Defendant; 4) the complainint witness is a resident or a former resident of the same household as the Defendant.   There are enhanced penalties against Defendants chaged with domestic violence based upon the following: 1) the Defendant had one prior conviction as explained below.  This increases the possible punishment to a misdemeanor of not more than 1 year in jail, and a fine of not more than $1,000 (one thousand dollars), or both; 2) the Defendant has two or more prior convictions as explained below.  This increases the offense to a felony, with possible incarceration up to 2 years in prison, a fine of not more than $2,500 (two thousand five hundred dollars), or both.  The Defendant is also subject to possible habitual offender sentencing if convicted of the instant offense, and he or she has any prior felony convictions.   The possible prior convictions which can increase the punishment of a domestic assault or domestic violence conviction includes the following: 1) Assault under MCL 750.81a; 2) Assault and Infliction of Serious Injury under MCL 750.81a; 3) Felonious assault (Assault with a Dangerous Weapon) under MCL 750.82; 4) Assault with intent to Commit Murder under MCL 750.83; 5) Assault with intent to do Great Bodily Harm Less than Murder (Assault GBH) under MCL 750.84; 6) Assault with Intent to Maim under MCL 750.86; 7) A violation of a local ordinance that substantially corresponds to Assault; 8) A violation of a law of another state or local ordinance that substantially corresponds to any of the above statutes.   In Michigan, a Defendant who is found guilty or pleads guilty to Assault under MCL 750.81, or Assault and infliction of serious injury under 750.81a may be eligible for a special provision of the law (MCL 769.4a) to a deferred disposition of the proceedings when the allegation involves domestic violence or domestic assault.  Under MCL 769.4a the Court places the Defendant on probation after a finding of guilty, without entering a judgment.  If the Defendant successfully completes the terms of sentence and probation, the Court discharges the Defendant and dismisses the proceedings without a finding of guilt.  However, a non public record is maintained by the State Police to ensure that the Defendant isn't given the benefit of this provision a second time for another domestic violence related offense. The sentencing Court can, but is not required to, impose a period of incarceration even if it elects to grant the petition for MCL 769.4a or another diversionary status.   In order to receive 769.4a the Defendant must meet the following criteria: 1) The Defendant has no previous conviction(s) for assaultive crimes in this or another state; 2) The Defendant consents to the deferred proceedings; 3) The Prosecuting Attorney, in consultation with the complaining witness, consents to the deferred proceedings.   There are provisions under some local ordinances (if the Defendant is convicted under a local ordinance) that also give the Defendant the possibility of having the conviction expunged from the public record.  Also, a Defendant that does not meet the criteria under 769.4a or a local diversionary program could have the offense expunged from the public record under the Holmes Youthful Trainee Act (HYTA), if he or she is eligible for HYTA.  The Defendant could also pursue an expungement under the laws of the state of Michigan if he or she only has the 1 conviction on their record, and otherwise qualifies for an expungement.   A violation of probation, if substantiated, can result in the loss of a deferred disposition obtained under  MCL 769.4a, a diversion through  local ordinance, or HYTA.  In fact, the Court is required to enter the plea of guilty and impose sentence if any of the following occurs: 1) the Defendant fails to attend and participate in counseling if directed to do so; 2) the Defendant violates any outsandting no contact provisions placed on the Defendant's bail or bond; 3) The Defendant commits an assaultive crime while out on probation.   A conviction for domestic violence can impact an individual's 2nd Amendment freedom to bear arms.  Federal and/or Michigan State law prohibitions can arise upon a conviction for a domestic violence or domestic assault crime, including the right to purchase, possess, transport, and/or obtain a Carrying a Concealed Weapon (CCW) permit. This could also have negative repercussions on employment in which possession of a firearm is necessary.   Domestic violence or domestic assault allegations can effect an individual's parental custodial rights under MCL 722.23(k), MCL 722.25(1),and MCL 722.27a(3).  It is not uncommon for allegations of domestic violence or domestic assault to be raised precisely for this impact during a custody dispute.  This can selfishly devistate the bond and relationship between parent and child.   Persons that are not citizens of the United States need to be cautious when faced with domestic violence or domestic assault allegations.  These type of offense can lead to removal proceedings and deportation in some instances.  MCL 769.4a will NOT protect an alien facing potential immigration consequences based upon an allegation of domestic violence - it is still considered a conviction for immigration purposes.  Always consult with experienced immigration lawyers, such as the lawyers at Hilf & Hilf, PLC, whenever a criminal allegation has potential immigration consequences.   A Court can order a number of bail or bond conditions relating to domestic violence or domestic assault allegations that are unpleasant such as (but not limited to): no contact with the complaining witness; cannot go to the residence of the complaining witness (even if the Defendant is the owner or leasor of the residence); tether; substance abuse testing; subtance abuse counseling; monitoring by pretrial services or probation; cannot possess a firearm or dangerous weapon.      The Court can also order burdensome probationary conditions upon a Defendant convicted of a domestic violence or domestic assault related offense such as (but not limited to): no contact with the complaining witness; cannot go to the residence of the complaining witness (even if the Defendant is the owner or leasor of the residence); tether; domestic violence counseling; anger management counseling; substance abuse testing; substance abuse counseling; community service; monitoring by probation; payment of fines and costs; cannot possess a firearm or dangerous weapon.   An individual accused of a domestic violence related offense should hire an experienced criminal defense attorney immediately to assist him or her. As noted, the consequences of such a conviction can effect an individual's freedom, reputation, employment, and relationship with his or her family.   An experienced criminal defense lawyer can help with the following: 1) give proper advice; 2) help relieve the stress and pressure of the difficult situation by answering questions, and developing the best strategy for the circumstances; 3) address the police, Prosecutors, and Courts in an effective manner; 4) have a fair bail or bond set; 5) amend the conditions of bail or bond when required; 6) obtain the necessary evidence to defend or mitigate the case; 7) develop the testimony at preliminary examination (felony cases only); 8) file and argue any necessary motions before the Court; 9) fight at trial, or negotiate a fair resolution - depending upon the facts of the case; 10) address concerns regarding child custody/parenting time, employment consequences, and immigration issues; 11) have someone that cares about the result, who is working to obtain the best result possible under the particular facts of the allegation;   Daniel Hilf, Esq. of the law firm of Hilf & Hilf, PLC, is a lawyer who is driven by a commitment to his clients. His legal career is distinguished by an ability to think on his feet, to analyze issues in both conventional and unconventional ways, and to react effectively against the challenges presented by Prosecutors and Courts.   “There is no greater hardship than to be deprived of your family and freedom, and the quality of the lawyer often makes all the difference. When the government – the prosecutors and the police, with all its power and indifference, chooses to act against you, you need a lawyer with the confidence, the experience and talent to obtain the right result. I cannot let my clients down, and I will fight for them”.