2.11Technical Probation Violation

A.Statutory Requirements

Unless acknowledged under MCR 6.450¹ and “[e]xcept as otherwise provided in [MCL 771.4b], a probationer who commits a technical probation violation and is sentenced to temporary incarceration may be incarcerated for each technical violation as follows:

(a) For a technical violation committed by an individual who is on probation because he or she was convicted of or pleaded guilty to a misdemeanor:

(i) For a first violation, jail incarceration for not more than 5 days.

(ii) For a second violation, jail incarceration for not more than 10 days.

(iii) For a third violation, jail incarceration for not more than 15 days.

(iv) For a fourth or subsequent violation, jail incarceration for any number of days, but not exceeding the total of the remaining eligible jail sentence.

(b) For a technical violation committed by an individual who is on probation because he or she was convicted of or pleaded guilty to a felony:

(i) For a first violation, jail incarceration for not more than 15 days.

(ii) For a second violation, jail incarceration for not more than 30 days.

(iii) For a third violation, jail incarceration for not more than 45 days.

(iv) For a fourth or subsequent violation, jail or prison incarceration for any number of days, but not exceeding the total of the remaining eligible jail or prison sentence.” MCL 771.4b(1).

A jail sanction for a technical probation violation “may be extended to not more than 45 days if the probationer is awaiting placement in a treatment facility and does not have a safe alternative location to await treatment.” MCL 771.4b(3). When counting technical probation violations, violations that “arise[] out of the same transaction” must be counted as a single probation violation for purposes of MCL 771.4b. MCL 771.4b(5).

“A probationer may acknowledge a technical probation violation in writing without a hearing before the court being required.” MCL 771.4b(2). MCR 6.450 governs the acknowledgment of a technical probation violation. See Section 2.11(B). See also SCAO Form MC 521, Technical Probation Violation Acknowledgment.

“Subject to the exception in [771.4b(6)²], the court shall not revoke probation on the basis of a technical probation violation unless a probationer has already been sanctioned for 3 or more technical probation violations and commits a new technical probation violation.” 771.4b(4).

“[T]here is a rebuttable presumption that the court shall not issue a warrant for arrest for a technical probation violation and shall issue a summons or order to show cause to the probationer instead.” MCL 771.4b(7). A warrant may be issued if the court overcomes the presumption by stating on the record “a specific reason to suspect” that the probationer (1) “presents an immediate danger to himself or herself, another person, or the public”; (2) has left court-ordered inpatient treatment without permission; or (3) has already failed to appear after being issued a summons or order to show cause. Id.

When a probationer is arrested and detained for a technical probation violation hearing, the hearing must be held “as soon as is possible,” and “[i]f the hearing is not held within the applicable and permissible jail sanction, as determined under [MCL 771.4b(1)(a)-(b)], the probationer must be returned to community supervision.” MCL 771.4b(8).

“MCL 771.4b(9)(b)(i) unambiguously provides that a violation of a no-contact provision in a probation order is nontechnical only when the no-contact order pertains to a named individual, [and] it was error for the trial court to conclude that the Legislature intended defendant’s violation of the probation order prohibiting contact with a broad class of persons to be ‘nontechnical.’” People v Smith, ___ Mich App ___, ___ (2024). In Smith, the trial court erred when it sentenced defendant to serve 35 to 60 months in prison where the “violation of his probation conditions was a technical one, [and] MCL 771.4b(1)(b)(i) limited the sentence for defendant’s first and single technical violation of having contact with persons under 17 years old to 15 days in jail.” Smith, ___ Mich App at ___. In Smith, “[a]fter defendant pleaded guilty to violating his probation order requiring him to not have physical contact with anyone under the age of 17, the trial court found that defendant committed a ‘nontechnical’ probation violation . . . .” Id. at ___. However, “defendant’s probation order [did] not name an ‘individual,’ and describing a class of persons does not fall within the clear words of the statute.” Id. at ___. Further, “MCL 771.4(2) specifically provides that all probation orders are revocable subject to the requirements of section 4b . . . and continues that revocation of probation, and subsequent incarceration, should be imposed only for repeated technical violations, for new criminal behavior,  . . . or upon request of the probationer.” Smith, ___ Mich App at ___ (quotation marks omitted). Additionally, “the provisions of MCL 771.4b(7)(a) and MCL 771.4(1) . . . do not pertain to whether defendant’s violation could properly be considered nontechnical.” Smith, ___ Mich App at ___. The Court of Appeals rejected the “argument that the use of ‘should’ rather than ‘shall’ within MCL 771.4(2) . . . indicates that probation revocation need not necessarily follow from the bases specified.” Smith, ___ Mich App ___, ___ (2024). “However, despite the permissive language, the Legislature continued to incorporate the definitions and restrictions regarding technical violations found in MCL 771.4b.” Smith, ___ Mich App at ___. “Thus, there is no statutory ambiguity allowing construction of MCL 771.4b(9)(b)(i) in any way other than recognizing that its plain language renders defendant’s violation of the no-contact order a technical one.” Smith, ___ Mich App at ___.

B.Court Rule Procedure for Acknowledgment Without a Hearing

“In lieu of initiating a probation violation proceeding under MCR 6.445, the court may allow a probationer to acknowledge a technical probation violation without a hearing.” MCR 6.450(A).

Required advice. “The acknowledgment must be in writing and advise the probationer of the following information

(1) the probationer has a right to contest the alleged technical probation violation at a formal probation violation hearing;

(2) the probationer is entitled to a lawyer’s assistance at the probation violation hearing and at all subsequent court proceedings, and that the appointing authority will appoint a lawyer at public expense if the probationer wants one and is financially unable to retain one;

(3) the court will not revoke probation or sentence the probationer to incarceration as a result of the acknowledgment, but the court may continue probation, modify the conditions of probation, or extend probation;

(4) if the probationer violates probation again, the court may consider the acknowledgment a prior technical probation violation conviction for the purposes of determining the maximum jail or prison sentence and probation revocation eligibility authorized by law;

(5) acknowledging a technical probation violation may delay the probationer’s eligibility for an early discharge from probation.”³ MCR 6.450(A)(1)-(5).

See also SCAO Form MC 521, Technical Probation Violation Acknowledgment.

Permissible actions by the court. “Upon acknowledgment of a technical probation violation by a probationer, the court may continue probation, modify the conditions of probation, or extend the term of probation.” MCR 6.450(B).

Court may not revoke probation or order incarceration. “The court may not impose a sentence of incarceration or revoke probation for acknowledging a technical probation violation under this rule, but the court may count the acknowledgment for the purpose of identifying the number of technical probation violations under MCL 771.4b.” MCR 6.450(B).