A brief discussion on pretrial release is contained in this section. For a more comprehensive discussion, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 8.
This section discusses various ways in which a court may order pretrial release for a defendant accused of committing a crime involving domestic violence. In these cases, it may be safest to issue pretrial release orders under MCL 765.6b (conditional release) because the statute expedites enforcement of pretrial release orders by authorizing their entry into the Law Enforcement Information Network (LEIN) system and permits law enforcement officers to make a warrantless arrest upon reasonable cause to believe that a pretrial release order has been violated.
Unless a pretrial release order has already been issued, at a defendant’s arraignment on the complaint and/or warrant, “the court must order that, pending trial, the defendant be: (1) held in custody as provided in [MCR 6.106(B)]; (2) released on personal recognizance or an unsecured appearance bond; or (3) released conditionally, with or without money bail (ten percent, cash or surety).” MCR 6.106(A).
“In deciding which [pretrial] release to use and what terms and conditions to impose, the court is to consider relevant information, including
(a) [the] defendant’s prior criminal record, including juvenile offenses;
(b) [the] defendant’s record of appearance or nonappearance at court proceedings or flight to avoid prosecution;
(c) [the] defendant’s history of substance abuse or addiction;
(d) [the] defendant’s mental condition, including character and reputation for dangerousness;
(e) the seriousness of the offense charged, the presence or absence of threats, and the probability of conviction and likely sentence;
(f) [the] defendant’s employment status and history and financial history insofar as these factors relate to the ability to post money bail;
(g) the availability of responsible members of the community who would vouch for or monitor the defendant;
(h) facts indicating the defendant’s ties to the community, including family ties and relationships, and length of residence, and
(i) any other facts bearing on the risk of nonappearance or danger to the public.”1, 2 MCR 6.106(F)(1).
In domestic violence cases, a court should assess the presence of circumstances indicating whether the defendant is likely to kill or seriously injure an intimate partner or other person. This is known as assessing any present “lethality factors.” For additional information on lethality indicators, see the Batterer Intervention Standards for the State of Michigan, Section 5.2, at http://www.biscmi.org/aboutus/docs/michigan_standards_final.html.
MCR 6.106(F)(2) requires the court to state the reasons for its decision on the record if it orders that the defendant be held in custody under MCR 6.106(B)3 or released on conditions under MCR 6.106(D) that include money bail.4 However, “[t]he court need not make a finding on each of the enumerated factors.” MCR 6.106(F)(2).
The rules of evidence do not apply to “proceedings for release on bail or otherwise.” MRE 1101(b)(3).
Because some domestic violence crimes may involve the type of serious conduct for which a pretrial release may be denied, this subsection briefly discusses the circumstances under which a court may deny a defendant a pretrial release under MCR 6.106(B).
Under MCR 6.106(B)(1), “[t]he court may deny pretrial release to
(a) a defendant charged with
(i) murder or treason, or
(ii) committing a violent felony and
[A] at the time of the commission of the violent felony, the defendant was on probation, parole, or released pending trial for another violent felony, or
[B] during the 15 years preceding the commission of the violent felony, the defendant had been convicted of 2 or more violent felonies under the laws of this state or substantially similar laws of the United States or another state arising out of separate incidents,
if the court finds that proof of the defendant’s guilt is evident or the presumption great;
(b) a defendant charged with criminal sexual conduct in the first degree, armed robbery, or kidnapping with the intent to extort money or other valuable thing thereby, if the court finds that proof of the defendant’s guilt is evident or the presumption great, unless the court finds by clear and convincing evidence that the defendant is not likely to flee or present a danger to any other person.”
“If the court determines as provided in [MCR 6.106(B)(1)] that the defendant may not be released, the court must order the defendant held in custody for a period not to exceed 90 days after the date of the order, excluding delays attributable to the defense, within which trial must begin or the court must immediately schedule a hearing and set the amount of bail.” MCR 6.106(B)(3).
MCR 6.106(B)(4) requires the court to “state the reasons for an order of custody on the record and on a form approved by the State Court Administrator’s Office entitled ‘Custody Order[,]’”5 and place the completed order in the court file.
1.Protective Conditions in Custody Order
“The court may, in its custody order, place conditions on the defendant, including but not limited to restricting or prohibiting [the] defendant’s contact with any other named person or persons, if the court determines the conditions are reasonably necessary to maintain the integrity of the judicial proceedings or are reasonably necessary for the protection of one or more named persons. If an order under this paragraph is in conflict with another court order, the most restrictive provisions of the orders shall take precedence until the conflict is resolved.” MCR 6.106(B)(5).
“Nothing in [MCR 6.106] limits the ability of a jail to impose restrictions on detainee contact as an appropriate means of furthering penological goals.” MCR 6.106(B)(6).
The defendant or the prosecutor may request a custody hearing “if the defendant is being held in custody pursuant to MCR 6.106(B)[;]” the court has discretion whether to conduct the hearing.6 MCR 6.106(G)(1).
Note: If the court grants a request for a custody hearing, MCR 6.106(G)(2) provides the following hearing procedures:
“(a) At the custody hearing, the defendant is entitled to be present and to be represented by a lawyer, and the defendant and the prosecutor are entitled to present witnesses and evidence, to proffer information, and to cross-examine each other’s witnesses.
(b) The rules of evidence, except those pertaining to privilege, are not applicable. Unless the court makes the findings required to enter an order under [MCR 6.106(B)(1)], the defendant must be ordered released under [MCR 6.106(C)] or [MCR 6.106(D)]. A verbatim record of the hearing must be made.”
B.Release on Interim Bond or Personal Recognizance
Except as provided in MCL 780.582a, a person arrested with or without a warrant for a misdemeanor or a violation of a city, village, or township ordinance punishable by imprisonment for not more than one year and/or a fine may be eligible for an interim bond “if a magistrate is not available or immediate trial cannot be had[.]” MCL 780.581(1)-(2); MCL 780.582. MCL 780.583a also permits an arresting officer to release an arrested person on his or her own recognizance if the arrest is made on a misdemeanor warrant from another county and MCL 780.582a does not apply.
Under MCL 780.582a individuals arrested for certain domestic violence offenses are ineligible for release on interim bond or personal recognizance. MCL 780.582a states that “[a] person shall not be released on an interim bond as provided in [MCL 780.581] or on his or her own recognizance as provided in [MCL 780.583a], but shall be held until he or she can be arraigned or have [an] interim bond set by a judge or district court magistrate[,] if either of the following applies:
(a) The person is arrested without a warrant under . . . MCL 764.15a,[7] or a local ordinance substantially corresponding to that section.
(b) The person is arrested with a warrant for a violation of . . . MCL 750.81 [(assault and battery)] and [MCL] 750.81a [(assault with infliction of serious or aggravated injury)], or a local ordinance substantially corresponding to [MCL 750.81] of that act and the person is a spouse or former spouse of the victim of the violation, has or has had a dating relationship[8] with the victim of the violation, has had a child in common with the victim of the violation, or is a person who resides or has resided in the same household as the victim of the violation.” MCL 780.582a(1).
Note: See also MCR 6.106(C), which requires the court to release a defendant, not held in custody under MCR 6.106(B), “on personal recognizance, or on an unsecured appearance bond, subject to the conditions that the defendant will appear as required, will not leave the state without permission of the court, and will not commit any crime while released, unless the court determines that such release will not reasonably ensure the appearance of the defendant as required, or that such release will present a danger to the public.”
“If a judge or district court magistrate sets [an] interim bond under [MCL 780.582a], the judge or magistrate shall consider and may impose the condition that the person released shall not have or attempt to have contact of any kind with the victim.” MCL 780.582a(2).
1.Release Subject to Protective or other Release Conditions
“If a judge or district court magistrate releases under [MCL 780.582a] a person subject to protective conditions,[9] the judge or district court magistrate shall inform the person on the record, either orally or by a writing that is personally delivered to the person, of the specific conditions imposed and that if the person violates a condition of release, he or she will be subject to arrest without a warrant and may have his or her bond forfeited or revoked and new conditions of release imposed, in addition to any other penalties that may be imposed if he or she is found in contempt of court.” MCL 780.582a(3).
“[MCL 780.582a] does not limit the authority of judges or district court magistrates to impose protective or other release conditions under other applicable statutes or court rules.” MCL 780.582a(7).
2.Content Requirements for Order or Amended Order
If a court orders a person released subject to protective conditions, the order must contain specified information. MCL 780.582a(4) requires “[a]n order or amended order issued under [MCL 780.582a(3)] [to] contain all of the following:
(a) A statement of the person’s full name.
(b) A statement of the person’s height, weight, race, sex, date of birth, hair color, eye color, and any other identifying information the judge or district court magistrate considers appropriate.
(c) A statement of the date the conditions become effective.
(d) A statement of the date on which the order will expire.
(e) A statement of the conditions imposed, including, but not limited to, the condition prescribed in [MCL 780.582a(3)].”
3.Entry of Order or Amended Order into Law Enforcement Information Network (LEIN)
MCL 780.582a(5) requires “[t]he judge or district court magistrate [to] immediately direct a law enforcement agency within the jurisdiction of the court, in writing, to enter an order or amended order issued under [MCL 780.582a(3)] into the law enforcement information network [(LEIN)] as provided by . . . MCL 28.211 to [MCL] 28.216.” At the judge’s or district court magistrate’s direction, the law enforcement agency must immediately enter the order or amended order into the LEIN. MCL 780.582a(6).
“If the order or amended order is rescinded, the judge or district court magistrate shall immediately order the law enforcement agency to remove the order or amended order from the [LEIN].” MCL 780.582a(5). At the judge’s or district court magistrate’s direction or if the order or amended order expires, the law enforcement agency must immediately remove the order or amended order from the LEIN. MCL 780.582a(6).
C.Ordering Conditional Release
“If the court determines that [a release on personal recognizance] will not reasonably ensure the appearance of the defendant as required, or will not reasonably ensure the safety of the public, the court may order the pretrial release of the defendant on the condition or combination of conditions that the court determines are appropriate[.]” MCR 6.106(D). See also MCL 765.6b.
“Under Michigan law, a court’s decision in setting bond is a court order[,]” and “a bail decision is an interlocutory order.” People v Mysliwiec, 315 Mich App 414, 417 (2016) (noting that “[b]ond conditions necessarily ‘command, direct, or instruct’” a defendant and are thus, “court orders within the term’s plain and ordinary meaning[, and] finding a “defendant’s bond condition prohibiting the use of alcohol was a court order punishable by contempt[]” under MCL 600.1701(g) where the trial court orally ordered that a condition of the defendant’s bond was to abstain from possession or consumption of any alcohol and then “issued written mittimuses requiring that [the] defendant have no alcohol[]”).10
1.Content Requirements for Order or Amended Order
“An order or amended order[11] issued under [MCL 765.6b(1)] shall contain all of the following:
(a) A statement of the defendant’s full name.
(b) A statement of the defendant’s height, weight, race, sex, date of birth, hair color, eye color, and any other identifying information the judge or district court magistrate considers appropriate.
(c) A statement of the date the conditions become effective.
(d) A statement of the date on which the order will expire.
(e) A statement of the conditions imposed.” MCL 765.6b(2).
MCR 6.106(D) provides for possible conditions the court may order with the defendant’s pretrial release, which include:
“(1) that the defendant will appear as required, will not leave the state without permission of the court,[12] and will not commit any crime while released, and
(2) subject to any condition or conditions the court determines are reasonably necessary to ensure the appearance of the defendant as required and the safety of the public, which may include requiring the defendant to
(a) make reports to a court agency as are specified by the court or the agency;
(b) not use alcohol or illicitly use any controlled substance;
(c) participate in a substance abuse testing or monitoring program;
(d) participate in a specified treatment program for any physical or mental condition, including substance abuse;
(e) comply with restrictions on personal associations, place of residence, place of employment, or travel;
(f) surrender driver’s license or passport;
(g) comply with a specified curfew;
(h) continue to seek employment;
(i) continue or begin an educational program;
(j) remain in the custody of a responsible member of the community who agrees to monitor the defendant and report any violation of any release condition to the court;
(k) not possess a firearm or other dangerous weapon;
(l) not enter specified premises or areas and not assault, beat, molest or wound a named person or persons;
(m) comply with any condition limiting or prohibiting contact with any other named person or persons. If an order under this paragraph limiting or prohibiting contact with any other named person or persons is in conflict with another court order, the most restrictive provision of the orders shall take precedence until the conflict is resolved. The court may make this condition effective immediately on entry of a pretrial release order and while [the] defendant remains in custody if the court determines it is reasonably necessary to maintain the integrity of the judicial proceedings or it is reasonably necessary for the protection of one or more named persons.
(n) satisfy any injunctive order made a condition of release; or
(o) comply with any other condition, including the requirement of money bail as described in subrule (E), reasonably necessary to ensure the defendant's appearance as required and the safety of the public.”
See also MCL 765.6b(1), permitting “[a] judge or district court magistrate [to] release a defendant under [MCL 765.6b(1)] subject to conditions reasonably necessary for the protection of 1 or more named persons.”13 “If a judge or district court magistrate releases a defendant under [MCL 765.6b(1)] 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 [MCL 771.3f] and any other penalties that may be imposed if the defendant is found in contempt of court.” MCL 765.6b(1).
a.Purchase or Possession of a Firearm
The judge or district court magistrate “may impose a condition that the defendant not purchase or possess a firearm.” MCL 765.6b(3). See also MCR 6.106(D)(2)(k), which provides that the court may impose a condition on the defendant’s pretrial release that requires the defendant “not possess a firearm or other dangerous weapon[.]”
However, the judge or district court magistrate must impose a condition that the defendant not purchase or possess a firearm where the judge or district court magistrate “orders the defendant to carry14 or wear an electronic monitoring device as a condition of release as described in [MCL 765.6b(6).]” MCL 765.6b(3).
For additional information on firearm restrictions in domestic violence cases, see Chapter 6.
b.Electronic Monitoring Device Requirements
MCL 765.6b(6) permits “the judge or district court magistrate [to] order the defendant to wear an electronic monitoring device as a condition of release” where “[the] defendant [] is charged with a crime involving domestic violence, or any other assaultive crime, [and] is released under [MCL 765.6b(1) and MCL 765.6b(6).]”
The court must consider certain factors when deciding “whether to order a defendant to wear an electronic monitoring device[.]” MCL 765.6b(6). “In determining whether to order a defendant to wear an electronic monitoring device, the court shall consider the likelihood that the defendant’s participation in electronic monitoring will deter the defendant from seeking to kill, physically injure, stalk, or otherwise threaten the victim prior to trial.” Id. If the judge or district court magistrate orders the defendant’s participation in electronic monitoring, the defendant “shall only be released if he or she agrees to pay the cost of the device and any monitoring as a condition of release or to perform community service work in lieu of paying that cost.” MCL 765.6b(6). “An electronic monitoring device ordered to be worn under [MCL 765.6b(6)] shall provide reliable notification of removal or tampering.” MCL 765.6b(6).
“The court shall instruct the entity monitoring the defendant’s position to notify the proper authorities if the defendant violates the order.” MCL 765.6b(6). “With the informed consent of the victim, the court may also order the defendant to provide the victim of the charged crime with an electronic receptor device capable of receiving the global positioning system information from the electronic monitoring device worn by the defendant that notifies the victim if the defendant is located within a proximity to the victim as determined by the judge or district court magistrate in consultation with the victim.” MCL 765.6b(6).
“The victim shall also be furnished with a telephone contact with the local law enforcement agency to request immediate assistance if the defendant is located within that proximity to the victim.” MCL 765.6b(6). “In addition, the victim may provide the court with a list of areas from which he or she would like the defendant excluded[, and] [t]he court shall consider the victim’s request and shall determine which areas the defendant shall be prohibited from accessing.” Id.
MCL 765.6b(6) permits the victim to make a request for termination of his or her participation in the defendant’s monitoring at any time. The court cannot impose sanctions against the victim for refusing to participate in the monitoring. MCL 765.6b(6).
2.Entry of Order or Amended Order into Law Enforcement Information Network (LEIN)
MCL 765.6b(4) requires the court to immediately provide written direction to the issuing court or a law enforcement agency within the court’s jurisdiction “to enter an order or amended order issued under [MCL 765.6b(1)] or [MCL 765.6b(1)] and [MCL 765.6b(3)] into LEIN.” At the judge’s or district court magistrate’s direction, the issuing court or the law enforcement agency must immediately enter the order or amended order into LEIN. MCL 765.6b(5).
Note: “[C]ourts that enter [pretrial release orders under MCL 765.6b subject to] protective conditions into LEIN [on behalf of a law enforcement agency] must first execute an agreement with the law enforcement agency for which it enters these records[, and] . . . [the] courts must ensure these orders and their conditions are able to be confirmed 24 hours a day, seven days a week.”15 State Court Administrative Office (SCAO) Memorandum, Protective Conditions – MCL 765.6b.
“If the order or amended order is rescinded, the judge or district court magistrate shall immediately order the issuing court or law enforcement agency to remove the order or amended order from LEIN.” MCL 765.6b(4). At the judge’s or district court magistrate’s direction or if the order or amended order expires, the issuing court or the law enforcement agency must immediately remove the order or amended order from LEIN.16 MCL 765.6b(5).
“If the court determines for reasons it states on the record that the defendant’s appearance or the protection of the public cannot otherwise be assured, money bail, with or without conditions described in [MCR 6.106(D)], may be required.” MCR 6.106(E).
MCL 765.6(1) also provides that “[e]xcept as otherwise provided by law, a person accused of a criminal offense is entitled to bail. The amount of bail shall not be excessive[, and] [t]he court in fixing the amount of the bail shall consider and make findings on the record as to each of the following:
(a) The seriousness of the offense charged.
(b) The protection of the public.
(c) The previous criminal record and the dangerousness of the person accused.
(d) The probability or improbability of the person accused appearing at the trial of the cause.” MCL 765.6(1).
“If the court fixes a bail amount under [MCL 765.6(1)] and allows for the posting of a 10% deposit bond, the person accused may post bail by a surety bond in an amount equal to 1/4 of the full bail amount fixed under [MCL 765.6(1)] and executed by a surety approved by the court.”17 MCL 765.6(2). See also MCR 6.106(E), which details the requirements a court may place on the defendant when posting bail.
E.Appealing a Release Decision
A party may appeal a release decision by “fil[ing] a motion in the court having appellate jurisdiction over the court that made the release decision.” MCR 6.106(H)(1). There is no fee for the appeal, and the appellate court cannot stay, vacate, modify, or reverse the trial court’s release decision absent a finding that the trial court abused its discretion. Id.
F.Modification of Pretrial Release
A court, on its own or on the request of either party, may modify a prior release decision after “finding that there is a substantial reason for doing so[.]” MCR 6.106(H)(2)(a). “The party seeking modification of a release decision has the burden of going forward.” MCR 6.106(H)(2)(c). Specifically, MCR 6.106(H)(2) provides, in part:
“(a) Prior to Arraignment on the Information. Prior to the defendant’s arraignment on the information, any court before which proceedings against the defendant are pending may, on the motion of a party or its own initiative and on finding that there is a substantial reason for doing so, modify a prior release decision or reopen a prior custody hearing.
(b) Arraignment on Information and Afterwards. At the defendant’s arraignment on the information and afterwards, the court having jurisdiction of the defendant may, on the motion of a party or its own initiative, make a de novo determination and modify a prior release decision or reopen a prior custody hearing.”
“Based upon any credible evidence of acts or threats of physical violence or intimidation by the defendant or at the defendant’s direction against the victim or the victim’s immediate family, the prosecuting attorney may move that the bond . . . of a defendant be revoked.” MCL 780.755(2) (applicable to felony offenses); MCL 780.813a (applicable to misdemeanor offenses). See also MCL 780.785(2) (applicable to juvenile offenses), which permits the prosecuting attorney to “move that the juvenile be detained in a juvenile facility” if there exists “any credible evidence of acts or threats of physical violence or intimidation by the juvenile or at the juvenile’s direction against the victim or the victim’s immediate family.”
A defendant may be released from custody in an effort to “relieve jail conditions[.]” See MCR 6.106(H)(3). “If a defendant being held in pretrial custody under [MCR 6.106] is ordered released from custody as a result of a court order or law requiring the release of prisoners to relieve jail conditions, the court ordering the defendant’s release may, if appropriate, impose conditions of release in accordance with this rule to ensure the appearance of the defendant as required and to protect the public. If such conditions of release are imposed, the court must inform the defendant of the conditions on the record or by furnishing to the defendant or the defendant’s lawyer a copy of the release order setting forth the conditions.” MCR 6.106(H)(3).
H.Failure to Comply with Conditions of Pretrial Release
If the defendant fails to comply with the conditions of release,
•“[a] peace officer, without a warrant, may arrest and take into custody a defendant whom the peace officer has or receives positive information that another peace officer has reasonable cause to believe is violating or has violated a condition of release imposed under [MCL 765.6b] or . . . MCL 780.582a.”18 MCL 764.15e(1).
•“the court may, pursuant to MCR 6.103,19 issue a warrant for the arrest of the defendant and enter an order revoking the release order and declaring the bail money deposited or the surety bond, if any, forfeited.” MCR 6.106(I)(2).
•the defendant may be held in criminal contempt of court. See People v Mysliwiec, 315 Mich App 414, 418 (2016).
In addition, law enforcement officers, prosecutors, and courts may enforce out-of-state conditional release orders or probation orders that protect a named person and meet the definition of foreign protection order under MCL 600.2950h(a). MCL 600.2950l(2) (requiring enforcement pursuant to MCL 600.2950m, MCL 764.15(1)(g), MCL 780.1–MCL 780.31, or MCL 780.41–MCL 780.45. Violation of such an order is a 93-day/$500 misdemeanor. MCL 600.2950m.
“A peace officer, without a warrant, may arrest and take into custody a defendant whom the peace officer has or receives positive information that another peace officer has reasonable cause to believe is violating or has violated a condition of release imposed [under MCL 765.6b or MCL 780.582a].” MCL 764.15e(1). But see People v Mysliwiec, 315 Mich App 414, 421 (2016) (finding “MCL 764.15e and its procedural requirements [did] not apply” because “MCL 764.15e outlines the procedures that apply when a defendant is arrested for violating bond conditions imposed under MCL 765.6b or MCL 780.582a[, and the d]efendant [in this case] was arrested for violating a bond condition involving alcohol, which was not imposed under MCL 765.6b or MCL 780.582a[]”).20
If a defendant has been arrested without a warrant under MCL 764.15e(1) for an alleged violation of a condition of his or her pretrial release, the arresting officer must “[p]repare a complaint of violation of conditional release substantially in the . . . format [prescribed by MCL 764.15e(2)(a).]” MCL 764.15e(2)(a). The procedure after preparing the complaint differs slightly depending on whether the defendant was arrested in or out of the judicial district where the pretrial release conditions were imposed. See MCL 764.15e(2)(b)-(c). Hearing and revocation procedures for cases under MCL 764.15e are governed by the Michigan Court Rules. MCL 764.15e(5).
Note: 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 to and serve upon the person an appearance ticket . . . and release the person from custody.” However, MCL 764.9c(3)(c) prohibits the issuance of an appearance ticket to “[a] person subject to a mandatory period of confinement, condition of bond, or other condition of release until he or she has served that period of confinement or meets that requirement of bond or other condition of release.”21
If the defendant was arrested in the same judicial district of the court that imposed the conditions of his or her pretrial release, the arresting officer must immediately provide copies of the complaint as follows:
•one copy of the complaint must be provided to the defendant.
•the original complaint and one copy of it must be provided to the court in the judicial district where the conditional release order originated.
•one copy of the complaint must be provided to the prosecuting attorney involved in the case in which the conditional release was granted.
•one copy of the complaint must be kept by the law enforcement agency. MCL 764.15e(2)(b)(i).
In addition, within one business day after his or her arrest, the defendant must be brought before the court that issued the pretrial release to answer the alleged violation unless he or she is released on interim bond under MCL 764.15e(3). MCL 764.15e(2)(b)(ii).
If the arrest occurred outside the judicial district of the court that imposed the pretrial release conditions, the arresting officer must immediately provide copies of the complaint as follows:
•one copy of the complaint must be provided to the defendant.
•the original complaint and one copy of it must be provided to the district court or municipal court in the judicial district where the violation occurred.
•one copy of the complaint must be kept by the law enforcement agency. MCL 764.15e(2)(c)(i).
In addition, within one business day of the defendant’s arrest, he or she must be brought before the district or municipal court in which the violation occurred unless he or she is released on interim bond under MCL 764.15e(3). MCL 764.15e(2)(c)(ii). That court must “determine conditions of release and promptly transfer the case to the court that released the defendant subject to conditions.” Id. “The court to which the case is transferred shall notify the prosecuting attorney in writing of the alleged violation.” Id.
If the arresting agency or officer in charge of the jail determines that it is safe to release the defendant before he or she is brought before the court under MCL 764.15e(2), the agency or officer may release the defendant on interim bond of not more than $500.00 and require that the defendant appear at the opening of court the next business day. MCL 764.15e(3). “If the defendant is held for more than 24 hours without being brought before the court under [MCL 764.15e(2)], the officer in charge of the jail shall note in the jail records why it was not safe to release the defendant on interim bond under [MCL 764.15e(3)].” MCL 764.15e(3).
Note: The interim bond statutes (MCL 780.581–MCL 780.588) do not apply to certain domestic violence offenses. See MCL 780.582a. If the conditional release violation also constitutes one of these offenses, the defendant should not be released on an interim bond. Id. See Section 3.5(B) for a discussion of restrictions on interim bonds.
MCL 764.15e(4) requires the court to “give priority to cases brought under [MCL 764.15e] in which the defendant is in custody or in which the defendant’s release would present an unusual risk to the safety of any person.”
2.Issuance of a Bench Warrant and Forfeiture of Bond
“[T]he court may, pursuant to MCR 6.103,[22] issue a warrant for the arrest of the defendant and enter an order revoking the release order and declaring the bail money deposited or the surety bond, if any, forfeited.” MCR 6.106(I)(2).
“Upon issuing the bench warrant, the court should set a show cause date, prepare SCAO form MC-218, Order Revoking Release and Forfeiting Bond, Notice of Intent to Enter Judgment,[23] and sign and mail the form to the defendant, the surety agent, anyone who posted bond, and the prosecutor.” SCAO Memorandum, Surety Bond Process. See also MCR 6.106(I)(2)(a), which requires the court to “mail notice of any revocation order immediately to the defendant at the defendant’s last known address and, if forfeiture of bail or bond has been ordered, to anyone who posted bail or bond.”
“If the defendant does not appear and surrender to the court within 28 days after the revocation date, the court may continue the revocation order and enter judgment for the state or local unit of government against the defendant and anyone who posted bail or bond for an amount not to exceed the full amount of the bail, and costs of the court proceedings, or if a surety bond was posted, an amount not to exceed the full amount of the surety bond.”24 MCR 6.106(I)(2)(b). “If the defendant does not within [28 days after the revocation date] satisfy the court that there was compliance with the conditions of release other than appearance or that compliance was impossible through no fault of the defendant, the court may continue the revocation order and enter judgment for the state or local unit of government against the defendant alone for an amount not to exceed the full amount of the bond, and costs of the court proceedings.”25 MCR 6.106(I)(2)(b).
Note: “MCL 600.8511 does not confer the authority to sign an Order Revoking Release and Forfeiting Bond to a district court magistrate.” Amendment to Surety Bond Process, supra at p 3.
Any bail or bond money deposited and executed by the defendant must first be applied to any fine, costs, or statutory assessments imposed; any balance remaining must be returned to the defendant, subject to MCR 6.106(I)(1). MCR 6.106(I)(3).
A court may find persons who have violated a court order guilty of criminal contempt. See MCL 600.1701(g) (providing the court with statutory authority to punish a person for contempt if he or she disobeys “any lawful order, decree, or process of the court[]”). For a detailed discussion on contempt of court in general, see the Michigan Judicial Institute’s Contempt of Court Benchbook and Contempt Quick Reference Materials.
Violation of a bond condition is punishable by criminal contempt because “a court’s decision in setting bond is a court order[,]” and “a bail decision is an interlocutory order.” People v Mysliwiec, 315 Mich App 414, 417, 418 (2016) (finding a “bond condition prohibiting defendant’s use of alcohol was a court order punishable by contempt[]” under MCL 600.1701(g) where “[t]he trial court . . . issued written mittimuses which required [the] defendant have no alcohol[]” following the defendant’s arraignment on a charge of operating a motor vehicle while under the influence of alcohol).
I.Revocation of Pretrial Release Based on DNA Identification
“[I]f an arrestee is released on bail, development of DNA identification revealing the defendant’s unknown violent past can and should lead to the revocation of his [or her] conditional release. . . . It is reasonable in all respects for the State to use an accepted [DNA] database to determine if an arrestee is the object of suspicion in other serious crimes, suspicion that may provide a strong incentive for the arrestee to escape and flee.” Maryland v King, 569 US 435, 440, 455, 465-466 (2013) (holding that the collection and analysis of an arrestee’s DNA according to Combined DNA Index System (CODIS)26 procedures “[a]s part of a routine booking procedure for serious offenses[]” did not violate the Fourth Amendment where the DNA sample was used to identify the arrestee as the perpetrator of an earlier unsolved rape).
J.Termination of Release Order
The court must vacate a defendant’s release order and discharge any person who has posted bail or bond once the release order’s conditions are met and the defendant is discharged from all obligations of the case. MCR 6.106(I)(1). If cash or its equivalent was posted in the full amount of the bail, the court must return the cash or its equivalent. Id. If there was a 10 percent deposit of the full bail amount, the court must return 90 percent of the amount of money deposited and keep 10 percent. Id.
Any bail or bond money deposited and executed by the defendant must first be applied to any fine, costs, or statutory assessments imposed; any balance remaining must be returned to the defendant, subject to MCR 6.106(I)(1). MCR 6.106(I)(3).