Domestic Violence Attorney Brian J. Prain Explains What Domestic Violence Probation is Like in Michigan.
At
The Law Office of Brian J. Prain, PLLC,
we have NEVER had a client go to Jail for Domestic Violence, and
we specifically concentrate on defending those accused of Assault crimes,
including
Domestic Violence (also called Domestic Assault), and we sure don't intend for you to be the first. Don't put
your life and future in the hands of a "general" practitioner. Brian
J. Prain has been
nationally ranked Top 10 Criminal Defense Attorney Under 40 in Michigan,
Top 40 Trial Lawyers Under 40, has been featured in
Super Lawyers Magazine and
HOUR Detroit, and much more.
The
definition of Domestic Violence under MCL 750.81(2) is essentially the same as
Assault and Battery, and it carries the same possible penalty of
93 days Jail for a 1st offense (1 year for
Second Offense and
Aggravated Domestic Violence,
5 years in Prison for a
Domestic Violence Felony). But the collateral consequences of a Domestic Violence conviction are
immense in many ways, including
2nd Amendment rights and immigration to name a few. Ideally, you want to be found
NOT GUILTY at trial. But not every case is solid enough to take to trial (click here for our article on the decision to go to Trial or plead).
RELATED:
Will my DV case be dismissed if the alleged victim doesn't show-up in Court?
So for those lucky enough to avoid Jail, what is it like being on Michigan
Domestic Violence Probation? What follo
Paste
ws is an overview of the key aspects of DV Probation.
- Pleading to Domestic Violence: Every case where the accused ends up on Probation (rather than Jail, although there can be both) is the result of either being found guilty at trial or pleading guilty. If the Prosecution's case is strong or if trial is not a feasible option for other reasons, an accused person may plead guilty to Domestic Violence. Hopefully, through skillful advocacy, an expert DV defense attorney will be able to AVOID A PERMANENT CONVICTION after Probation by securing a dismissal under MCL 769.4a, the Michigan Domestic Violence Deferral (also called "Spouse Abuse Act").
- Presentence Investigation/Interview and Report: After pleading in a Domestic Violence case, the defendant is directed to the District Court Probation Department to meet with a Probation Officer. The Probation Officer gathers biographical, educational, employment, psychological, family, and substance abuse information and reviews the Police Report, Witness Statements, and offers the Defendant an opportunity to make a statement (you also have a right to remain silent). Based on all this information, the Probation Officer prepares a Presentence Investigation Report (also called "PSI" or "PSIR"), which makes recommendations to the Judge about what type of Sentence the Court should impose. As Judge's typically follow these recommendations, this interview is very important and must go well.
- Length of Probation Term: this is entirely up to the Judge, but again, the Judge will rely heavily on the recommendation of the Probation Officer in the PSI. The maximum amount of time a person can be placed on Probation for a Misdemeanor offense is 2 years. The length of Probation typically depends on the severity of the alleged Assaultive act or acts. At Prain Law, PLLC, we have had clients sentenced to costs and fines with no Probation, and otherwise between 3 and 18 months Probation. However, the typical term of Michigan DV Probation is 12 months.
- Terms and Conditions of Domestic Violence Probation: DV Probation in Michigan is typically "reporting" Probation, requiring you to meet with your Probation Officer once monthly. Typical terms and conditions of Probation for Domestic Violence include the following: community service (such as the District Court Work Program), either 26 or 52 weeks of weekly attendance at Domestic Violence classes (such as the four stage DV Program at ETRS at a cost of $25 per class, also referred to as "batterer's awareness programs"), psychological evaluation, anger management or other counseling as recommended after the evaluation (you may be allowed to continue seeing your own counselor if you are already seeing one), no alcohol use or alcohol or drug testing (at your own expense) in cases where substance abuse was a contributing factor (also including Drug Court), no contact with the Complainant for the term of Probation (this is rare), surrender of any firearms or other weapons, and any other condition the Court feels is "rationally related to the rehabilitation of the offender." A great criminal defense attorney can help you get the least intensive Probation possible.
- Fines and Costs: In addition to doing all or some of the above terms and conditions of Probation with the associated costs, a person placed on Probation will also be fined and must pay Court costs. The fine can be up to $500. The additional costs include such things as: PSI fee (approximately $100), court costs (approximately $500), State costs ($68), DV fee ($75), crime victim rights fee ($50), probation oversight fee based on income (typically $20 - $40), and any restitution for medical expenses or damaged property. All in all, the fines and costs come in at about $1,500 - $2,000, and a good criminal defense attorney can get this turned into payments spread throughout the case.
- Domestic Violence Probation Violations: if your Probation Officer has reason to believe you have violated any terms of your Probation (including non-payment of fines and costs), they have the option of "violating" you, meaning they file either a Motion and Order to Show Cause or a Motion and Affidavit for Warrant for Violation of Probation ("VOP"). You have 2 choices: 1) plead Guilty to the Violation and be Sentenced (hopefully with leniency); or 2) exercise your right to a Violation of Probation Hearing, where you may be found Not Guilty by the Judge or Guilty and Sentenced. Sentences for Domestic Assault VOP include: revoking Probation, extending or modifying Probation, and sending you to Jail. If you received the 769.4a Deferral, it could be revoked and you'd have a permanent, public conviction on your record. In-fact, there are certain violations (such as violating a No Contact Order) where the Court must revoke 769.4a.