Domestic Violence: Keeping a Conviction Off Your Record . . .
In Michigan, the charge of Domestic Violence is sometimes also referred to as Domestic Assault. Either way, assuming that you have not previously been convicted of Domestic Violence, it is all the same criminal charge under MCL 750.81(2), the Domestic Violence statute, having a possible penalty of up to 93 days in the County Jail and/or up to a $500 fine for a 1st offense (it is significantly more if you've previously been convicted of Domestic Violence).
Under Michigan law, the charge of Aggravated Domestic Violence (also called Aggravated Domestic Assault) is an act of Domestic Violence which causes a "serious or aggravated injury," and is punishable by up to an entire year in the County Jail and/or up to a $1,000 fine.
Through our experiences with our clients facing Domestic Violence (or "Domestic Assault") charges, whether Simple or Aggravated, we have found that they have two primary objectives: 1) staying out of Jail; and2) making sure their Michigan Domestic Assault charge doesn't have a lasting, negative impact on their future. Well, Michigan Domestic Violence law has a special provision that can help achieve these goals without the stress of having to take your case to Trial, and it is called the Michigan Domestic Violence Deferral, under MCL 769.4a. Are you eligible? Let us explain and you'll find out . . .
The Michigan Domestic Assault Deferral, MCL 769.4a, is a pretty long and wordy statute, so we will break it down for you, beginning with a checklist of the requirements that must be met for your Domestic Violence charge to qualify for this special, once-in-a-lifetime Deferral deal:
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You must have been convicted in the current case of either Domestic Violence, 1st offense, or Aggravated Domestic Violence, 1st offense, regardless of whether your conviction is the result of a plea or a verdict of guilty after a Trial.
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You must have "not been convicted previously of an assaultive crime" (i.e. any crime involving the word "assault," even a simple Assault and Battery from a scuffle at the local bar - but note that there is a difference between being "charged" and being "convicted," so have your Domestic Violence attorney check your Certified Criminal History to be sure).
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You must have never used this Domestic Violence Deferral deal before (the Court will check with the State Police for this, as well as any previous "assaultive crime" convictions as stated above).
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The Prosecutor must consent to this Domestic Violence Deferral after "consultation with the victim" (who has a right to express their opinion under Michigan's Crime Victim Rights Act, although they don't make the ultimate decision).
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You must consent to this Domestic Violence Deferral.
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The Judge must consent to this Domestic Violence Deferral in your case.
Alright, so it sounds like you just might be eligible for this Deferral under MCL 769.4a, but what exactly does it do for you? Well, it means that the Court "may defer further proceedings and place [you] on probation . . . without entering an adjudication of guilt." MCL 769.4a(1). Then, "upon fulfillment of the terms and conditions [of probation], the Court shall discharge [you] and dismiss the proceedings against [you] . . . without an adjudication of guilt," such that you do not have any "conviction . . . for purposes of [the usual] disqualifications or disabilities imposed by law upon a conviction" for Domestic Violence or Aggravated Domestic Violence (i.e. impairment of your 2nd Amendment right to bear arms, etc.). MCL 769.4a(5).
Put simply, if you successfully complete the probation without violating its terms and conditions, the Court will erase the permanent public record of Domestic Assault or Aggravated Domestic Assault so that for people outside of the government, like employers and others, it appears as if it never happened! (Although the "State Police shall retain a nonpublic record" of your Domestic Violence / Aggravated Domestic Violence arrest and discharge and dismissal so that Courts can check in the future to see if you have already used this Deferral deal.
PLEASE NOTE: the Michigan Domestic Violence Deferral under MCL 769.4a is amended, effective April 1, 2013, so that even if you successfully receive the Deferral and are discharged and the Domestic Violence charges are dismissed, this case will still count as a "prior conviction" if you are ever later charged with any of the following:
- another Domestic Violence crime, making the new charge a possible Domestic Violence Second Offense [MCL 769.4a(5); MCL 750.81(3)];
- another Domestic Violence crime while having 2 or more prior Domestic Violence convictions (Domestic Violence Third Offense Felony - a 5 year Prison maximum) [MCL 769.4a(5); MCL 750.81(4)]; or
- Aggravated Domestic Violence while having 1 more more prior Domestic assaultive convictions (also a Michigan Domestic Violence Felony with a 5 year Prison maximum) [MCL 769.4a(5); MCL 750.81a(3).
Under the Domestic Violence Deferral statute, however, you can still go to Jail even if you get this deal [up to 93 days for Domestic Violence (Domestic Assault), and up to 1 year for Aggravated Domestic Violence (Aggravated Domestic Assault). Non-consecutive service of Jail time and "day parole" may be allowed. Still, at The Law Office of Brian J. Prain, PLLC, we know how to reduce and even eliminate this possibility and can usually get you NO JAIL AT ALL, even on many Aggravated Domestic Violence charges. Terms and conditions of your probation may include, but are not limited to, a 26 or 52 week "batterer's treatment" counseling program or other counseling program (and payment of costs therefore), participation in Drug Treatment Court, a "No Contact Order" with regard to the complainant, and many other possible conditions.
If you violate your probation by: committing another assaultive crime while on probation, failing to complete any counseling program ordered, or violating a No Contact Order; then the Court "shall enter an adjudication of guilt"; the whole deal is reversed and you will be back at square one - with a permanent Domestic Violence or Aggravated Domestic Violence conviction on your record for all to see and likely a much harsher sentence imposed. Other probation violations may reverse the deal.
The Law Office of Brian J. Prain, PLLC is highly experienced at getting you Michigan's Domestic Violence Deferral under MCL 769.4a. If you are facing Michigan Domestic Violence or Aggravated Domestic Violence charges, there is no reason NOT to contact us confidentially for a free consultation to see how we might protect your freedom and your future!