“[T]he Legislature defines an assault as being a domestic assault if the defendant and the victim have ever been married to each other, have ever resided together, had a child in common, or have ever had a dating relationship.” People v Wilson (Willie), 265 Mich App 386, 393-394 (2005).
A.Assault and Assault and Battery
“Except as provided in subsection (3),[1] (4), or (5), an individual who assaults or assaults and batters the individual’s spouse or former spouse, an individual with whom the individual has had a dating relationship, an individual with whom the individual has had a child in common, or a resident or former resident of the individual’s household, is guilty of a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than $500.00 or both.” MCL 750.81(2).
Note: “The three categories of victims set forth in [MCL 750.81(2)] are discrete classifications, and if a victim falls within one of these classifications, the statute applies. Coverage extends, in the first category, to offenders who presently or previously were married to the victim or, in the second category, to offenders who biologically parented a child with the victim. Either of these categories may apply regardless of whether the offender and victim ever resided together in the same household. The third category applies to offenders who resided in a household with the victim at or before the time of the assault (or assault and battery) regardless of the victim's relationship with the offender. [MCL 750.81(2)] thus applies to ‘domestic’ offenders broadly defined as including persons joined by marriage, common parenting, or common household residence with the victim.” In re Lovell, 226 Mich App 84, 87-88 (1997) (Court of Appeals found that “[t]he phrase ‘a resident . . . of his or her household’ [] encompasse[d] [a] parent-child relationship” where the 16-year-old defendant-daughter allegedly assaulted and battered her mother).
First-time offenders who are in violation of MCL 750.81(2) may be eligible for deferred proceedings under MCL 769.4a. See Section 2.3(C) for a detailed discussion of deferred proceedings.
Victims of assault and assault and battery are entitled to restitution. See MCL 780.794(2) (juvenile offenders); MCL 780.826(2) (misdemeanor offense).
For additional information on restitution, see the Michigan Judicial Institute’s Crime Victim Rights Benchbook.
MCL 750.81(4)-(5) prescribe enhanced penalties for repeat offenders.2 If the prior conviction involved a crime listed in MCL 750.81(4)-(5), and that prior crime was committed against the assailant’s spouse or former spouse, a person with whom the assailant has or has had a dating relationship, a person with whom the assailant has had a child in common, a resident or former resident of the assailant’s household, or a pregnant woman whom the assailant knew to be pregnant, the penalties for the current offense will be enhanced as follows:
•Offenders with a single prior conviction are “guilty of a misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than $1,000.00, or both[.]”MCL 750.81(4).
•Offenders with 2 or more prior convictions are “guilty of a felony punishable by imprisonment for not more than 5 years or a fine of not more than $5,000.00, or both[.]” MCL 750.81(5).
Note: There is no statutory requirement that the victim involved in the prior conviction be the same person as the victim of the current offense.
The prior convictions that result in enhanced penalties under MCL 750.81(4)-(5) are:
•A violation of MCL 750.81 (assault) or a local ordinance substantially corresponding to MCL 750.81;
•A violation of MCL 750.81a (assault and infliction of serious injury);
•A violation of MCL 750.82 (felonious assault);
•A violation of MCL 750.83 (assault with intent to commit murder);
•A violation of MCL 750.84 (assault with intent to do great bodily harm less than murder or assault by strangulation or suffocation);
•A violation of MCL 750.86 (assault with intent to maim); and
•A violation of a law of another state or a local ordinance of another state that substantially corresponds to MCL 750.81a, MCL 750.82, MCL 750.83, MCL 750.84, or MCL 750.86.
4.Technical Probation Violation
MCL 771.4b(1) (providing for a period of incarceration for technical probation violations that increases in length as the number of violations increases) does not apply to a probationer on probation for a domestic violence violation of MCL 750.81, or an offense involving domestic violence as that term is defined in MCL 400.1501.3 MCL 771.4b(6). There is a rebuttable presumption that no arrest warrant will issue for a technical probation violation. MCL 771.4b(7). Instead, the court will issue a summons or show-cause order to the probationer for the alleged technical probation violation. Id.
MCR 6.445(A) expressly provides that “[t]he court must issue a summons, rather than a bench warrant, upon finding probable cause to believe a probationer has committed a technical violation of probation . . . .” (Emphasis added.) The court may overcome the presumption that a summons will issue (rather than a bench warrant) if “the court states on the record a specific reason to suspect that one or more of the following apply:
(1) The probationer presents an immediate danger to himself or herself, another person, or the public.
(2) The probationer has left court-ordered inpatient treatment without the court’s or the treatment facility’s permission.
(3) A summons has already been issued for the technical probation violation and the probationer failed to appear as ordered.” MCR 6.445(A). See also MCL 771.4b(7)(a)-(c) (providing substantially the same information as does MCR 6.445(A)(1)-(3)).
At arraignment for the alleged violation, the court must “inform the probationer whether the alleged violation is charged as a technical or non-technical violation of probation, and the maximum possible jail or prison sentence.” MCR 6.445(B)(2).4 See also MCL 771.4b(8) (hearing on a technical probation violation must occur “as soon as is possible”).
If, after the probation violation hearing, the court finds that the probation violation was proved, the court must inform the probationer “whether the violation is a technical or non-technical violation of probation.” MCR 6.445(E)(2). If a probationer pleads guilty to a probation violation, the court must, among other things, “establish factual support for a finding that the probationer is guilty of the alleged violation and whether the violation is a technical or non-technical violation of probation.” MCR 6.445(F)(4).
“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). The acknowledgment must be written5 and must provide the probationer with the specific information stated in MCR 6.450(A).6 Id. Specifically, and among other provisions, the acknowledgment must inform the probationer that acknowledging a technical violation could delay his or her eligibility for early discharge. MCR 6.450(A)(5); MCR 6.441. See also MCL 771.4b(2) (permitting written acknowledgment of a technical probation violation without a hearing).
5.Early Discharge From Probation
Except as provided in MCL 771.2(10), MCL 771.2a, and MCL 768.36, a probationer may be eligible for early discharge from probation if he or she completes half of the original felony or misdemeanor probation period. See MCL 771.2(2). Under MCL 771.2(10), early discharge is not available to a defendant who was convicted of a domestic violence related violation of MCL 750.81 or an offense involving domestic violence (as defined in MCL 400.1501).7 MCL 771.2a addresses probation for individuals convicted of stalking under MCL 750.411h. MCL 768.36 addresses probation for individuals who were found guilty but mentally ill. See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 2, Chapter 9, for more information on early discharge from probation.
B.Assault and Infliction of Serious or Aggravated Injury
“Except as provided in subsection (3), an individual who assaults the individual’s spouse or former spouse, an individual with whom the individual has or has had a dating relationship, an individual with whom the individual has had a child in common, or a resident or former resident of the same household without a weapon and inflicts serious or aggravated injury upon that individual without intending to commit murder or to inflict great bodily harm less than murder is guilty of a misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than $1,000.00, or both.” MCL 750.81a(2).
First-time offenders who are in violation of MCL 750.81a(2) may be eligible for deferred proceedings under MCL 769.4a. See Section 2.3(C) for a detailed discussion of deferred proceedings.
The Michigan Supreme Court indicated that it is unclear if Michigan “jurisprudence recognizes the principle of mutually exclusive verdicts[.]” See People v Williams (Kathleen), 504 Mich 892 (2019), rev’g in part 323 Mich App 202 (2018). Regardless whether the principle exists, the Williams Court found that mutually exclusive verdicts were not presented in the circumstances of that case. See also People v Davis (Joel), 503 Mich 984, 985 (2019), where “the Court of Appeals erred by relying on the principle of mutually exclusive verdicts to vacate [only] defendant’s aggravated domestic assault conviction” after the defendant challenged his aggravated domestic violence and assault with intent to do great bodily harm (AWIGBH) convictions under double-jeopardy principles. Although “the statutory language of AWIGBH requires a defendant to commit assault with the specific intent to do great bodily harm, whereas the statutory language of aggravated domestic assault requires a defendant to commit assault without the intent to commit great bodily harm,” “the jury was not instructed that it must find that defendant acted without the intent to inflict great bodily harm” relative to the aggravated domestic assault charge. Id. (“the jury was instructed that to convict defendant of AWIGBH, it must find that defendant acted ‘with intent to do great bodily harm . . .”). Therefore, “the jury never found that defendant acted without the intent to inflict great bodily harm,” and his “guilty verdict for [aggravated domestic violence] was not mutually exclusive to [his] guilty verdict for AWIGBH, where the jury affirmatively found that defendant acted with intent to do great bodily harm.” Id. (remanded to address the merits of defendant’s double-jeopardy argument).
Victims of assault and infliction of serious or aggravated injury are entitled to restitution. See MCL 780.794(2) (juvenile offenders); MCL 780.826(2) (misdemeanor offense).
For additional information on restitution, see the Michigan Judicial Institute’s Crime Victim Right’s Benchbook.
MCL 750.81a(3) provides for enhanced penalties for repeat offenders:8
“An individual who commits an assault and battery in violation of subsection (2), and who has 1 or more previous convictions for assaulting or assaulting and battering 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 the same household, in violation of any of the following, is guilty of a felony punishable by imprisonment for not more than 5 years or a fine of not more than $5,000.00, or both:”
•A violation of MCL 750.81 (domestic assault, assault and battery);
•A violation of MCL 750.81a (domestic assault and infliction of serious injury) or a local ordinance substantially corresponding to MCL 750.81a;
•A violation of MCL 750.82 (felonious assault);
•A violation of MCL 750.83 (assault with intent to commit murder);
•A violation of MCL 750.84 (assault with intent to do great bodily harm less than murder or assault by strangulation or suffocation);
•A violation of MCL 750.86 (assault with intent to maim); and
•A violation of a law or local ordinance or another state substantially corresponding to MCL 750.81, MCL 750.82, MCL 750.83, MCL 750.84, or MCL 750.86.
Note: There is no statutory requirement that the victim involved in the prior conviction be the same person as the victim of the current offense.
In addition, effective April 1, 2013, a discharge and dismissal of proceedings under MCL 769.4a (deferred proceedings for assaultive crimes and domestic violence crimes) constitutes “a prior conviction in a prosecution under [MCL 750.81(4)-(5) and MCL 750.81a(3)].” MCL 769.4a(5).
5.Technical Probation Violation
MCL 771.4b(1) (providing for a period of incarceration for technical probation violations that increases in length as the number of violations increases) does not apply to a probationer who is on probation for a domestic violence violation of MCL 750.81a, or an offense involving domestic violence as that term is defined in MCL 400.1501.9 MCL 771.4b(6). There is a rebuttable presumption that no arrest warrant will issue for a technical probation violation. MCL 771.4b(7). Instead, the court will issue a summons or show-cause order to the probationer for the alleged technical probation violation. Id.
MCR 6.445(A) expressly provides that “[t]he court must issue a summons, rather than a bench warrant, upon finding probable cause to believe a probationer has committed a technical violation of probation . . . .” (Emphasis added.) The court may overcome the presumption that a summons will issue (rather than a bench warrant) if “the court states on the record a specific reason to suspect that one or more of the following apply:
(1) The probationer presents an immediate danger to himself or herself, another person, or the public.
(2) The probationer has left court-ordered inpatient treatment without the court’s or the treatment facility’s permission.
(3) A summons has already been issued for the technical probation violation and the probationer failed to appear as ordered.” MCR 6.445(A). See also MCL 771.4b(7)(a)-(c) (providing substantially the same information as does MCR 6.445(A)(1)-(3)).
At arraignment for the alleged violation, the court must “inform the probationer whether the alleged violation is charged as a technical or non-technical violation of probation, and the maximum possible jail or prison sentence.” MCR 6.445(B)(2).10 See also MCL 771.4b(8) (hearing on a technical probation violation must occur “as soon as is possible”).
If, after the probation violation hearing, the court finds that the probation violation was proved, the court must inform the probationer “whether the violation is a technical or non-technical violation of probation.” MCR 6.445(E)(2). If a probationer pleads guilty to a probation violation, the court must, among other things, “establish factual support for a finding that the probationer is guilty of the alleged violation and whether the violation is a technical or non-technical violation of probation.” MCR 6.445(F)(4).
“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). The acknowledgment must be written11 and must provide the probationer with the specific information stated in MCR 6.450(A).12 Specifically, and among other provisions, the acknowledgment must inform the probationer that acknowledging a technical violation could delay his or her eligibility for early discharge. MCR 6.450(A)(5); MCR 6.441. See also MCL 771.4b(2) (permitting written acknowledgment of a technical probation violation without a hearing).
6.Early Discharge From Probation
Except as provided in MCL 771.2(10), MCL 771.2a, and MCL 768.36, a probationer may be eligible for early discharge from probation if he or she completes half of the original felony or misdemeanor probation period. See MCL 771.2(2). Under MCL 771.2(10), early discharge is not available to a defendant who was convicted of a domestic violence related violation of MCL 750.81a, or an offense involving domestic violence (as defined in MCL 400.1501).13 MCL 771.2a addresses probation for individuals convicted of stalking under MCL 750.411h. MCL 768.36 addresses probation for individuals who were found guilty but mentally ill. See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 2, Chapter 9, for more information on early discharge from probation.
C.Deferred Sentencing for Domestic Assault Cases
An offender who is found guilty of, or pleads guilty to, a violation of MCL 750.81 or MCL 750.81a may be eligible for deferred proceedings under MCL 769.4a. MCL 769.4a allows the court to place the defendant on probation after a finding of guilt, without entering judgment:
“When an individual who has not been convicted previously of an assaultive crime pleads guilty to, or is found guilty of, a violation of . . . MCL 750.81 [or MCL] 750.81a, and the victim of the assault is the offender’s spouse or former spouse, an individual who has had a child in common with the offender, an individual who has or has had a dating relationship with the offender, or an individual residing or having resided in the same household as the offender, the court, without entering a judgment of guilt and with the consent of the accused and of the prosecuting attorney in consultation with the victim, may defer further proceedings and place the accused on probation as provided in this section.” MCL 769.4a(1).
In domestic assault cases, it is important to note that the statutory language of MCL 769.4a(1) requires consent of the “prosecuting attorney in consultation with the victim” in order to defer sentencing.
“However, before deferring proceedings under [MCL 769.4a(1)], the court shall contact the department of state police and determine whether, according to the records of the department of state police, the accused has previously been convicted of an assaultive crime or has previously had proceedings deferred under [MCL 769.4a].” MCL 769.4a(1). “If the search of the records reveals an arrest for an assaultive crime but no disposition, the court shall contact the arresting agency and the court that had jurisdiction over the violation to determine the disposition of that arrest for purposes of [MCL 769.4a].” Id.
Until October 1, 2021 an individual who pleads guilty to a criminal offense not listed in MCL 762.11(3) or MCL 762.11(4), committed on or after the individual’s seventeenth birthday but before his or her twenty-fourth birthday, may be permitted to participate in deferred proceedings if he or she meets certain eligibility requirements as set out under the Holmes Youthful Trainee Act (HYTA), MCL 762.11 et seq.14 MCL 762.11(1). “If the offense was committed on or after the individual’s twenty-first birthday but before his or her twenty-fourth birthday, the individual must not be assigned to youthful trainee status without the consent of the prosecuting attorney.” Id.
“Beginning October 1, 2021 an individual who pleads guilty to a criminal offense not listed in MCL 762.11(3) or MCL 762.11(4), committed on or after the individual’s eighteenth birthday but before his or her twenty-sixth birthday, may qualify for deferred proceedings as a youthful trainee if he or she meets certain eligibility requirements under the HYTA. MCL 762.11(2). If the individual committed the offense on or after his or her twenty-first birthday but before his or her twenty-sixth birthday, the prosecuting attorney must consent to the individual’s assignment to the status of youthful trainee. Id.
Deferred proceedings are also available for offenders who have been admitted into certain problem solving courts:15
•Veterans charged with a domestic violence offense if he or she meets certain eligibility requirements for admission into veterans treatment court under MCL 600.1200 et seq.16
•Individuals charged with a domestic violence offense if he or she meets certain eligibility requirements for admission into mental health court under MCL 600.1090 et seq.,17 and only if “[t]he individual has not previously had proceedings dismissed under . . . MCL 769.4a” and “[t]he domestic violence offense is eligible to be dismissed under . . . MCL 769.4a.” MCL 600.1098(4).
1.Conditions of Probation in Deferred Proceedings
MCL 769.4a(3) provides that an order of probation entered under MCL 769.4a(1) may include any of the following conditions:
•any condition of probation under MCL 771.3, including, but not limited to, ordering the defendant to participate in a mandatory counseling program, and requiring the defendant to pay reasonable costs to participate in the program.
•ordering the defendant to participate in drug treatment court under MCL 600.1060 to MCL 600.1088.
•ordering the defendant to be imprisoned for not more than 12 months at the time or for consecutive or nonconsecutive intervals within the period of probation.18
Note: The court may permit the defendant day parole,19 or a work or school release from jail.20 MCL 769.4a(3).
In addition, a veteran or an individual who is on probation under MCL 769.4a and whose proceedings have been deferred may be admitted into veterans treatment court or mental health court as a condition of probation. See MCL 600.1203(2)(b)(ii); MCL 600.1093(2)(b)(ii).
2.Court Records in Deferred Proceedings
MCL 769.4a(6) requires “[a]ll court proceedings under [MCL 769.4a] [to] be open to the public.” However, if the sentence is deferred under MCL 769.4a, the record must be closed to public inspection during the deferral period “[e]xcept as provided in [MCL 769.4a](7)[.]” MCL 769.4a(6).
MCL 769.4a(7) provides that “[u]nless the court enters a judgment of guilt under [MCL 769.4a], the department of state police shall retain a nonpublic record of the arrest, court proceedings, and disposition of the criminal charge under [MCL 769.4a]. However, the nonpublic record must be open to the following individuals and entities for the purposes noted:
(a) The courts of this state, law enforcement personnel, the department of corrections, and prosecuting attorneys for use only in the performance of their duties or to determine whether an employee of the court, law enforcement agency, department of corrections, or prosecutor’s office has violated the conditions of employment or whether an applicant meets criteria for employment with the court, law enforcement agency, department of corrections, or prosecutor’s office.
(b) The courts of this state, law enforcement personnel, and prosecuting attorneys for either of the following purposes:
(i) Showing that a defendant in a criminal action under . . . MCL 750.81 [or] [MCL] 750.81a, or a local ordinance substantially corresponding to [MCL 750.81] has already once had proceedings deferred under this section.
(ii) Determining whether the defendant in a criminal action is eligible for discharge and dismissal of proceedings by a drug treatment court under [MCL 600.1076](5)[.]
(c) The department of health and human services for enforcing child protection laws and vulnerable adult protection laws or ascertaining the preemployment criminal history of any individual who will be engaged in the enforcement of child protection laws or vulnerable adult protection laws.”
3.Fulfilling Probation Terms or Conditions in Deferred Proceedings
If the defendant fulfills the terms or conditions of probation, the court must discharge the defendant and dismiss the proceedings against him or her. MCL 769.4a(5). A person is limited to only one discharge and dismissal under MCL 769.4a. MCL 769.4a(5).
Note: “Discharge and dismissal under [MCL 769.4a] must be without adjudication of guilt and is not a conviction for purposes of [MCL 769.4a] or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime, but it is a prior conviction in a prosecution under [MCL 750.81(4)-(5) and MCL 750.81a(3)].” MCL 769.4a(5).
4.Violation of Term or Condition of Probation in Deferred Proceedings
If the defendant violates a term or condition of probation, the court may enter an adjudication of guilt and proceed to sentencing. MCL 769.4a(2). However, the court must enter an adjudication of guilt and proceed to sentencing if any of the following circumstances exist:
“(a) The accused commits an assaultive crime during the period of probation.
(b) The accused violates an order of the court that the accused receive counseling regarding the accused’s violent behavior.
(c) The accused violates an order of the court that the accused have no contact with a named individual.” MCL 769.4a(4).
A discussion of probation revocation is beyond the scope of this benchbook. For additional information on probation revocation, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 3, Chapter 2.
D.Enhanced Sentencing in Domestic Violence Cases
1.Procedures for Seeking an Enhanced Sentence
The prosecutor may seek an enhanced sentence where the defendant is convicted of MCL 750.81(4),21 MCL 750.81(5),22 or MCL 750.81a(3). MCL 750.81b. These three provisions require the defendant to have at least one previous conviction of certain offenses. See Sections 2.3(A) and (B) for a list of these offenses.
If the prosecutor seeks an enhanced sentence for domestic assault under MCL 750.81(4)-(5) (assault or assault and battery) or MCL 750.81a(3) (weaponless assault with infliction of serious injury and no intent to murder or inflict great bodily harm), the procedural requirements of MCL 750.81b apply:
“(a) The charging document or amended charging document shall include a notice provision that states that the prosecuting attorney intends to seek an enhanced sentence under MCL 750.81(4) or MCL 750.81(5)] or [MCL 750.81a(3)] and lists the prior conviction or convictions that will be relied upon for that purpose. The notice shall be separate and distinct from the language charging the current offense, and shall not be read or otherwise disclosed to the jury if the case proceeds to trial before a jury.
(b) The defendant’s prior conviction or convictions shall be established at sentencing. The existence of a prior conviction and the factual circumstances establishing the required relationship between the defendant and the victim of the prior assault or assault and battery may be established by any evidence that is relevant for that purpose, including, but not limited to, 1 or more of the following:
(i) A copy of a judgment of conviction.
(ii) A transcript of a prior trial, plea-taking, or sentencing proceeding.
(iii) Information contained in a presentence report.
(iv) A statement by the defendant.
(c) The defendant or his or her attorney shall be given an opportunity to deny, explain, or refute any evidence or information relating to the defendant’s prior conviction or convictions before the sentence is imposed, and shall be permitted to present evidence relevant for that purpose unless the court determines and states upon the record that the challenged evidence or information will not be considered as a basis for imposing an enhanced sentence under [MCL 750.81(4) or MCL 750.81(5)] or [MCL 750.81a(3)].
(d) A prior conviction may be considered as a basis for imposing an enhanced sentence under [MCL 750.81(4) or MCL 750.81(5)] or [MCL 750.81a(3)] if the court finds the existence of both of the following by a preponderance of the evidence:
(i) The prior conviction.
(ii) 1 or more of the required relationships between the defendant and the victim of the prior assault or assault and battery.” MCL 750.81b.
2.Domestic Violence and Habitual Offender Enhancement
A sentence for a subsequent conviction under the domestic violence statute, MCL 750.81, “which elevates an offense from a misdemeanor to a felony and increases the penalty for repeat offenses,” is subject to habitual offender enhancement. People v Stricklin, 322 Mich App 533, 541 (2018). “The domestic-violence statute does not impose mandatory determinate sentences for its violation[,] nor is it explicitly excepted from the habitual- offender act[; r]ather, the domestic-violence statute contains the type of statutory scheme of commonly charged offenses that courts have repeatedly found to be subject to habitual-offender enhancement.” Stricklin, 322 Mich App at 541-542 (“[t]he trial court . . . did not err by enhancing defendant’s sentence for third-offense domestic violence[23] under the habitual offender act[, MCL 769.12 (fourth-offense habitual offender)]”) (citations and quotation marks omitted). Because the “[d]efendant was convicted of violating MCL 750.81(4), not MCL 750.81 generally,” and “[t]hird-offense domestic violence is . . . a separate offense, the first conviction of which is punishable by a maximum of 5 years imprisonment, . . . the trial court’s application of MCL 769.12(1)(b) was appropriate, because the subsequent felony was punishable upon a first conviction by imprisonment for a maximum term of 5 years or more or for life.” Stricklin, 322 Mich App at 542 (holding that “[t]he trial court did not err by recognizing that it was authorized to enhance defendant’s sentence to a maximum of life imprisonment”) (citations and quotation marks omitted). Likewise, “the trial court [did not] err[] by basing [the defendant’s] sentence for witness intimidation[, MCL 750.122(7)(b)] on an underlying offense of third-offense domestic violence . . . as enhanced by the habitual offender act.” Stricklin, 322 Mich App at 543.
E.Warrantless Arrest in Domestic Assault Cases24
“A peace officer may arrest an individual for violating . . . MCL 750.81 [or MCL] 750.81a, or a local ordinance substantially corresponding to [MCL 750.81] . . . regardless of whether the peace officer has a warrant or whether the violation was committed in his or her presence if the peace officer has or receives positive information that another peace officer has reasonable cause to believe both of the following:
(a) The violation occurred or is occurring:
(b) The individual has had a child in common with the victim, resides or has resided in the same household as the victim, has or has had a dating relationship with the victim, or is a spouse or former spouse of the victim.” MCL 764.15a.
Note: In OAG, 1994, No 6822 (November 23, 1994),25 the Attorney General found that “a peace officer, in a domestic relations matter, may make a warrantless arrest for a misdemeanor of assault or assault and battery committed outside of the officer’s presence [under MCL 764.15a], in the absence of physical evidence of domestic abuse, when there is other corroborating evidence sufficient to constitute probable cause to believe that the person to be arrested committed the offense.” (Emphasis added).
See also Klein v Long, 275 F3d 544, 551 (CA 6, 2001) (Sixth Circuit Court of Appeals held that police officers had probable cause to arrest the appellant-husband without a warrant for domestic assault under MCL 750.81(2) where “[t]he physical evidence of battery in the bleeding finger, combined with [the victim-wife’s] description to the officers of [the appellant-husband’s] grabbing and pushing and her immediate fear of [the appellant-husband], constitute[d] a sufficient basis for the finding of probable cause.”
Generally, MCL 764.9c(1) permits “a police officer [who] has arrested a person without a warrant for a misdemeanor or ordinance violation . . . [to] issue [] and serve upon the person an appearance ticket . . . and release the person from custody.” An appearance ticket issued under MCL 764.9c, or other requested documentation, “must be forwarded to the court, appropriate prosecuting authority, or both, for review without delay.” MCL 764.9c(1). However, MCL 764.9c(3)(a) prohibits the issuance of an appearance ticket to “[a] person arrested for a domestic violence violation of . . . MCL 750.81 [or MCL] 750.81a, or a local ordinance substantially corresponding to a domestic violence violation of . . . MCL 750.81 [or MCL] 750.81a, or an offense involving domestic violence as that term is defined in . . . MCL 400.1501.” In addition, an appearance ticket must not be issued to an individual arrested for violating a personal protection order, or committing a serious misdemeanor or any other assaultive crime. MCL 764.9c(3)(b); MCL 764.9c(3)(d)-(e).26
Appearance tickets must be issued and an individual released from custody pursuant to the conditions in MCL 764.9c(4), except as provided in MCL 764.9c(5). MCL 764.9c(4) requires a police officer to issue an appearance ticket for specified offenses, and under certain circumstances, to release from custody a person who has been issued an appearance ticket under MCL 764.9c(4). Appearance tickets prescribed by MCL 764.9c(4) do not apply to offenses expressly listed in MCL 764.9c(4), which include serious misdemeanors, assaultive crimes, domestic violence violations under MCL 750.81 or MCL 750.81a, local ordinances substantially corresponding to violations of MCL 750.81 or MCL 750.81a, offenses involving domestic violence (as defined in MCL 400.1501), and operating while intoxicated offenses. MCL 764.9c(4).27
An indictment for domestic assault “may be found and filed within 6 years after the offense is committed.” See MCL 767.24(10). However, “[a]ny period during which the party charged[28] did not usually and publicly reside within this state is not part of the time within which the respective indictments may be found and filed.”29 MCL 767.24(11). “The extension or tolling, as applicable, of the limitations period provided in [MCL 767.24] applies to any of those violations for which the limitations period has not expired at the time the extension or tolling takes effect.”MCL 767.24(12).
See People v Blackmer, 309 Mich App 199, 202 (2015) (finding that because “the plain and unambiguous language of the . . . nonresident tolling provision [of MCL 767.2430] provides that the limitations period [is] tolled for any period in which a defendant [is] not customarily and openly living in Michigan[,]” a “[d]efendant’s subjective intent [to return to Michigan following his or her term of incarceration in another state] is irrelevant[, and] . . . the statute of limitations [is] tolled from the time defendant [leaves] Michigan”).
G.Other Remedies for Victims of Domestic Assault
Although criminal prosecution may succeed in holding offenders accountable under the criminal justice system, appropriately penalize them for their unlawful conduct, and result in the award of restitution to the victim of an offender’s criminal conduct, a victim may wish to pursue a civil action against the offender with the possibility of better compensating him or her for the immediate and long-term physical and psychological injuries caused by the offender’s conduct. For the period of limitations on commencement of an action to recover damages sustained because of domestic assault, see MCL 600.5805(4)-(5). For additional discussion on civil actions filed by crime victims, see the Michigan Judicial Institute’s Crime Victim Rights Benchbook, Chapter 10.
Administrative remedies may also be available to victims through the Crime Victim Services Commission (CVSC). For additional discussion on administrative remedies available through the CVSC, see the Michigan Judicial Institute’s Crime Victim Rights Benchbook, Chapter 9.