Michigan Domestic Violence Attorney for Domestic Assault

What is Domestic Violence or Domestic Assault in Michigan? How is it Defined? MCL 750.81(2)

One of the most common questions we receive at Prain Law, PLLC is “What is Domestic Violence?” A Domestic Violence charge (technically, but less commonly referred to as “Domestic Assault”) is brought when someone allegedly “assaults or assaults and batters his or her spouse or former spouse, an individual with whom he or she has or has had a dating relationship, an individual with whom he or she has had a child in common, or a resident or former resident of his or her household.”

Simply put, the definition of Domestic Violence in Michigan is an assault or assault and battery upon someone who has one of the above-defined domestic relationships with the person accused of Domestic Violence.

Regular Domestic Violence in Michigan is different than an Aggravated Domestic Violence under MCL 750.81a(2) because Aggravated DV alleges a "Serious or Aggravated Injury."

CLICK HERE to read about attorney Brian J. Prain's latest NOT GUILTY jury verdict in a Domestic Violence case...

CLICK HERE for the Prain Law, PLLC page on Michigan Aggravated Domestic Violence charges...

In the definition of Domestic Violence in Michigan, what do “assault” and “assault and battery” mean?

Under Michigan law, a battery is a forceful, violent, or offensive touching of another person or something closely connected with them. “Force” and “violence” mean something intended to harm or embarrass them. It must be intentional (not accidental), and it must be against the other person’s will. There does not have to be an injury for Battery (and therefore a Domestic Violence) to occur in Michigan.

An assault in Michigan can be either of two alternate things, either:

• a) an unsuccessful attempt to commit a battery (i.e. a swing and a miss); or
• b) any act that would cause a reasonable person to fear or apprehend an immediate battery (i.e. a fake slap to make someone flinch, but without actually touching them).

Like a battery, an assault in Michigan has to be intentional (not accidental), but there does not have to be any actual touching.

How can I avoid a Domestic Violence conviction? Am I eligible for the Michigan Domestic Violence Deferral (also called the "Spouse Abuse Act") under MCL 769.4a?

Michigan has a special law, MCL 769.4a (or just "769" for short), where certain Defendants charged with Domestic Violence can plead guilty (or be found guilty), go on Probation, and avoid having a conviction (public or private) if they complete Probation without any violations. For you to be eligible:

• You must either plead guilty or be found guilty at trial of Domestic Violence or Aggravated Domestic Violence.
• You must never have been convicted of Domestic Violence or any other "Assaultive" crime before.
• You must never have used the Deferral under 769.4a before. This is a new law as of 2013. Even though getting "769" is not a conviction for other areas of law such as gun rights, it still counts as a "conviction" if you are charged with Domestic Violence a second time in Michigan.
• The Prosecution, after consulting with your accuser, must consent to you getting 769.4a. This is much more likely to happen if you plead guilty rather than being found guilty by Judge or Jury at trial.

How do I get rid of the No Contact Order in my Michigan Domestic Violence case? How can the Judge tell me I can't talk to my wife, husband, boyfriend, or girlfriend?

In Michigan, Judges have the authority under MCL 765.6b to order No Contact between you and your accuser. This may mean you have to temporarily move out of your home. This law states:

"a judge or district court magistrate may release under this section a defendant subject to conditions reasonably necessary for the protection of 1 or more named persons. If a judge or district court magistrate releases under this section a defendant subject to protective conditions, the judge or district court magistrate shall make a finding of the need for protective conditions and inform the defendant on the record, either orally or by a writing that is personally delivered to the defendant, of the specific conditions imposed and that if the defendant violates a condition of release, he or she will be subject to arrest without a warrant and may have his or her bail forfeited or revoked and new conditions of release imposed, in addition to the penalty provided under section 3f of chapter XI and any other penalties that may be imposed if the defendant is found in contempt of court."

If you violate the No Contact Order and Police find out about it, you get locked-up in Jail until you see the Judge to have a new higher Bond set. If you can't afford the new Bond amount, you stay in Jail indefinitely. A violation can also be treated as a Contempt of Court. If you are accused of violating the No Contact Order but protest your innocence, you are entitled to a contested hearing to challenge that allegation.

To get the No Contact Order removed, a Defendant must make a Motion to the Judge. This can be done "on the fly" at any Court hearing, or it can be done through the formal process of filing a written Motion and scheduling a hearing. There are advantages and disadvantages to both ways. Either way, your Domestic Violence defense attorney must arrange for the alleged victim to be present in Court so the Judge can question them. The goal is to have the No Contact Order amended to a No Assaultive Contact Order.

CLICK HERE for Brian J. Prain's detailed articles on removing the No Contact Order in a Michigan Domestic Violence case...

Does Self-Defense apply to Domestic Violence in Michigan?

Yes. The Self-Defense laws apply to Michigan Domestic Violence charges just like any other charge. Every person, man, woman or child, has a right to use reasonable force to defend themselves against the use or threat of unlawful physical force against them. In fact, there is a Michigan Self-Defense Act, MCL 780.972 and a very good standard Self-Defense Jury Instruction to go along with it. Michigan has a great Self-Defense law. Michigan law even gives you a better chance there was past violence by your alleged victim.

Applying the Michigan Self-Defense laws to your case is too complex to cover on this page, so CLICK HERE for detailed information on Domestic Violence and Self-Defense in Michigan.

I was defending my property when I was accused of Domestic Violence. Does Defense of Property apply?

Absolutely. Just like we all have a right to defend ourselves, we have a right to use reasonable force to prevent our property from being taken or damaged. Defense of Property is an absolute defense to a charge of Domestic Violence in Michigan - the Defense of Property laws have been around longer than the Domestic Violence (Domestic Assault) laws themselves. Many lawyers do not even understand this concept. CLICK HERE for more information from Brian J. Prain about Domestic Violence and Defense of Property.

I've been accused of Domestic Violence (Domestic Assault) before - can that be used against me?

Yes, it's possible. This is the opposite of the usual rule. There is a special law allowing this in a Michigan Domestic Violence case: MCL 768.27b. The Prosecution must give Notice of their intent to use this "evidence" in advance of trial. The worst part is that they can attempt to use this even if the Police were never called. It can be a completely false allegation. This is a very, very bad law. At Prain Law, PLLC, we object to these and demand that the Judge NOT allow this into evidence.

What is the Sentence for Domestic Violence in Michigan? Will I go to Jail for Domestic Violence in Michigan?

A person who gets a Domestic Violence conviction in Michigan - first offense - is guilty of a misdemeanor punishable by imprisonment for not more than 93 days in the County Jail or a fine of not more than $500.00, or both.

Thus, you can go to Jail for Domestic Violence in Michigan for up to 93 days. Whether or not you will actually do Jail time depends on the severity of the allegations against you, how your Domestic Violence charges are defended, and the effectiveness of your Michigan Domestic Violence defense attorney.

Many people convicted of Domestic Violence first offense in Michigan do not receive Jail, but it is possible. Many people convicted of a Domestic Violence first offense in Michigan receive a Sentence of Probation, ranging from 6-18 months (24 months is the maximum). Common terms of Domestic Violence Probation include monthly reporting, community service, and one or more forms of anger management or “batterer’s awareness” counseling or classes.

At Prain Law, PLLC, we have NEVER had a client go to Jail for Domestic Violence, and we don’t intend to let you be our first.

What does all of this amount to for me?

For example, if you are on a date with someone you are considering dating again in the future, and you attempt to touch them and they back away, you could lose your freedom for up to 93 days, be forced to pay $500.00 in fines alone, go on probation with classes where they tell you that you have psychological problems, and worst of all, a public record that includes the word VIOLENCE. As always, the penalties are magnified if you have previous convictions.

One of the most common and dangerous misconceptions is that you can fix things with your accuser and that in exchange, the accuser can “drop” your domestic violence charge. Make no mistake, only the prosecutor can dismiss your domestic violence charge, and as a general rule, they will not, regardless of whether the accuser has changed their mind. Once the accusation is made, you need to defend, not reconcile.

In response to the immense national media fascination with “Domestic Violence,” the Michigan Domestic Violence law creates an easy incentive for your jaded spouse or bitter ex to try and manipulate your decisions and actions by accusing you of a crime which could cripple your future and even affect your ability to see your children.

Domestic Violence charges carry a lot of social stigmatism, and many police departments and prosecutor’s offices have responded to this opportunity to convict you by public opinion by creating special domestic violence units. Depending on your location, the prosecutor’s office may actually bring a “Special Attorney” into Court just to intimidate you. Don’t allow society’s illusion about domestic violence charges become your reality. The right domestic violence attorney understands these realities and is prepared to expose the issues and bring you the justice you deserve.

Contact Our Skilled Michigan Criminal Defense Attorney Today

Our team at Prain Law, PLLC concentrates specifically on defending those accused of Michigan Assault crimes, including Domestic Violence ("Domestic Assault") under MCL 750.81(2). We’re not just a “general” Criminal Defense practice, and our Michigan criminal defense lawyer has a multitude of experience and skill to make sure your voice is heard.