Michigan Criminal Lawyer Blog

In Michigan, probation cannot exceed 2 years for misdemeanors and 5 years for felonies. Probation is determined at the time of sentencing and may include a component of incarceration. For example, our firm recently represented someone who was convicted of a felony, drunk driving third offense. The offender had 6 total drinking and driving convictions on his record and faced 1-5 years in prison. The Court was persuaded by the defendant's employment and decision to begin a substance abuse treatment program. The defendant was sentenced to 2 years probation with the first 30 days in jail the Macomb County Jail; the minimum period of incarceration allowed by Michigan statute for felony drunk driving.

The least restrictive type of probation is called non-reporting or unsupervised. This means that the Defendant must be on good behavior during a period of probation and will be discharged at the end of probation provided the person does not violate any criminal laws. In addition, the Court may attach some conditions with non-reporting probation such as not leaving the State of Michigan without approval and attending an appropriate program (AA meetings or anger management).

Probation may also be supervised or reporting. The Court has broad power to place limitations and restrictions on otherwise legal behavior for a person who gets probation. For example, someone placed on probation may be prohibited from entering into a strip club or from using a computer. The image which is attached to this page is a copy of the probation conditions which are possible in Macomb County. Failure to abide by any of these provisions can result in termination of probation and incarceration.

Some counties, including Oakland and Ingham, employ a program known as Operation Nighthawk to monitor the behavior of those who are placed on probation. Operation Nighthawk is a program whereby probation officers along with law enforcement officers randomly visit probationers, usually after hours, to verify compliance. In an article which appears in the Ingham County Legal News, 55th District Court Judge says, "Unannounced sweeps by our probation office with local law enforcement officers are the backbone of Operation Nighthawk. NIGHTHAWK encourages probationers to follow their probation orders."

Once a domestic violence case is in the system, the court will send out notices to the attorney and to the victim. A domestic violence case is a criminal offense which is classified as a misdemeanor in Michigan. The case will be scheduled in the district court for various court dates including: arraignment, pretrial conference, trial and sentencing.

If the case is not resolved by plea bargain after a pretrial conference, the accused may demand a trial. A jury trial or bench trial may be requested. A bench trial is a trial before the judge without a jury. I favor bench trials in certain domestic violence cases because a judge is able to focus on the admissible relevant evidence and discount the drama and side shows.

Clients often ask me if the case can be dismissed if the victim does not show up for court. An attorney cannot ethically advise anyone to ignore a court notice or subpoena. In addition, once someone is charged with domestic violence, the case is pursued by the government and the police may admit the police report as evidence in the event that a victim fails to appear in court for trial. However, our attorneys would make a motion to dismiss the case if the victim fails to appear for one or more trial dates. A judge may consider granting the dismissal without prejudice. When a dismissal is granted without prejudice, the case may be reinstated in the future by the victim. When a case is dismissed with prejudice, it can never be reinstated.

Once in a while, it will come to our attention during the pendency of a domestic violence case that the victim is willing testify that he or she made false statements to the police or that the police report is inaccurate. In this scenario, we try to preserve any exculpatory statements by obtaining a written or recorded statement from the victim. Here are some possible legal maneuvers which can occur when a victim provides a conflicting statement, especially one which is favorable for the defense. An attorney can use the victim's subsequent written statement at trial for impeachment purposes if the victim attempts to recant the same. When we can admit the statement, it may discredit or weaken the victim's testimony to the extent that the judge or jury cannot find the defendant guilty beyond a reasonable doubt. On the other hand, the prosecutor may try to introduce evidence to indicate that the victim was threatened or coerced to provide a favorable statement for the accused. In addition, I have seen prosecutors in Macomb and Oakland County threaten victims with charges of filing a false police report when they attempt to change their earlier statements which were made to law enforcement officers at the time of the alleged incident.

Once arrested, a person charged with domestic violence will be held in jail, usually about 10 to 20 hours. Upon release, the person may have to post a bond which will be held by the court.

Almost anyone charged with domestic violence in Macomb County, as well as Oakland County, will be ordered to have no-contact with the victim. This is true even if the victim and the person charged are married and live in the same residence. Another scenario is when the alleged victim is not on the title or deed to the real estate, such as a live in girlfriend or boyfriend. Again, the person charged, or the owner of the residence, may be prohibited from returning to his or her own residence while the victim is present. A "no-contact" order as a condition of bond continues until it is lifted or removed by the district court judge. The district court judge may also continue the "no-contact" order as a condition of sentencing. A "no-contact" order can be lifted with the victim's consent which usually requires an appearance before the judge with both parties present. An attorney can often expedite a hearing to remove a "no-contact" order if both parties consent.

The path of least resistance for a person charged with domestic violence is to plea pursuant to MCL 769.4a. Our firm has been able to successfully negotiate a plea bargain pursuant to MCL 769.4a in every Michigan district court where we practice, including Macomb, Oakland and Wayne County. This Michigan law allows for a person who is charged as a first offender to have the domestic violence case dismissed after a one (1) period of probation. The conditions of probation will vary, depending upon the court, but will usually include the following components:

-Probation (reporting or non-reporting in the discretion of the court)
-Attendance of anger management program
-Substance abuse counseling if alcohol and drugs were involved
-Random drug and alcohol testing
-No contact with the victim unless otherwise stated by the court
-Fines and court costs

If the person is compliant while on probation pursuant to MCL 769.4a, the domestic violence case is dismissed. If the person violates probation or commits another crime during a period of probation, then the court can abstract the offense of domestic violence on his or her record and impose jail.

Part 3: Domestic Violence Cases in Macomb and Oakland County; Court Process, Victim Failing to Appear in Court, Victim Providing a Contrary Statement

Recently Ann Arbor and Huntington Woods have provided some guidance in Michigan's fractured, complex, and incredibly controversial Medical Marijuana Act. In Ann Arbor, while the city did not weigh in on whether or not to allow additional dispensaries (currently it has 20), it decided that cultivation facilities do not need licenses. Council Member Stephen Kunselman echoed the sentiments of the MMMA and said that he hoped to maintain caregiver confidentiality. Kunselman stated he doesn't want the city to gather information that could wind up in the possession of the feds. Additionally, the city decided not to differentiate between residential and non-residential grow facilities. However, Ann Arbor DID limit the amount of plants to 72. This sheds light on a question frequently posed to us, whether grow cooperatives are permitted under the MMMA.

Somewhat similarly, Huntington Woods adopted regulations for those growing marijuana as caregivers. It decided to prohibit these businesses from being run out of homes. Further, the city has delineated certain districts where these businesses must be located. Additionally, like any other business operating within the city, caregivers will have to submit a site plan to the Planning Commission for approval. However, unlike Ann Arbor, Huntington Woods stated that dispensaries are not embraced by the state law. It should be noted that both of these communities that are opening up the discussion about medical marijuana are communities where the Act was passed by margins in excess of 70%.

However, this does not mean that the dispute over the law's many uncertainties is close to being resolved. Recently, in an article that Abdo & La Grasso Law was quoted in, a Livingston Dispensary was raided. Additionally, the recent raid on Oakland County dispensaries raises serious questions about whether patients and caregivers need to be concerned about interference from the Feds. Moreover, a Dearborn judge recently decided that the entire MMMA was unconstitutional and denied to motion to dismiss a possession case.

So, on one hand we have communities beginning to regulate medical marijuana, and on the other there are communities ignoring the law outright. It is our position that more clarification is needed at the state level. Otherwise, well-intentioned patients and caregivers are going to be placed in jeopardy.