2.17Alternatives to a Formal Complaint and Arrest Warrant

A.Appearance Tickets for Misdemeanor Non-Traffic Violations

1.Statutory Authority

In lieu of filing a complaint as required by MCL 764.13, a police officer may issue an appearance ticket to a person who is arrested without a warrant “for a misdemeanor or ordinance violation[.]” MCL 764.9c(1). “The appearance ticket . . . , or other documentation as requested, must be forwarded to the court, appropriate prosecuting authority, or both, for review without delay.” Id.

“Except as provided in [MCL 764.9c(5)], a police officer shall issue to and serve upon a person an appearance ticket . . . and release the person from custody if the person has been arrested for a misdemeanor or ordinance violation that has a maximum permissible penalty that does not exceed 1 year in jail or a fine, or both, and is not a serious misdemeanor, assaultive crime, domestic violence violation of . . . MCL 750.81 [or MCL] 750.81a, a local ordinance substantially corresponding to a domestic violence violation of . . . MCL 750.81 [or MCL] 750.81a, an offense involving domestic violence . . ., or an operating while intoxicated offense.” MCL 764.9c(4). See Section 2.17(C) for more information on MCL 764.9(c)(5), arrest in lieu of appearance ticket.

MCL 764.9c “does not create a right to the issuance of an appearance ticket in lieu of an arrest. An arrested person may appeal the legality of his or her arrest as provided by law. However, an arrested person does not have a claim for damages against a police officer or law enforcement agency because he or she was arrested rather than issued an appearance ticket.” MCL 764.9c(8).

2.Appearance Ticket Requirements

Appearance tickets “must be numbered consecutively, provide a space for the defendant’s cellular telephone number and electronic mail address, if applicable, [and] be in a form required by the attorney general, the state court administrator, and the director of the department of state police[.]” MCL 764.9f(1).The original appearance ticket serves as the complaint or notice to appear and must be filed with the court. MCL 764.9f(1)(a). The first copy is the abstract of court record; the second copy must be retained by the local enforcement agency; the third copy must be delivered to the alleged violator. MCL 764.9f(1)(b)-(d).

3.Restrictions on the Issuance of Appearance Tickets

MCL 764.9c(3) prohibits the issuance of appearance tickets to:

•A person arrested for a domestic violence violation of assault and battery, MCL 750.81; aggravated assault and battery, MCL 750.81a; a substantially corresponding local ordinance; or an offense involving domestic violence. MCL 764.9c(3)(a).

•“A person subject to detainment for violating a personal protection order.” MCL 764.9c(3)(b).

•“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.” MCL 764.9c(3)(c).

•“A person arrested for a serious misdemeanor.” MCL 764.9c(3)(d).

•“A person arrested for any other assaultive crime.” MCL 764.9c(3)(e).

4.Failure to Appear

“If after the service of an appearance ticket and the filing of a complaint for the offense designated on the appearance ticket the defendant does not appear in the designated local criminal court within the time the appearance ticket is returnable, the court may issue a summons or a warrant as provided in this [MCL 764.9e].” MCL 764.9e(1). “Notwithstanding any provision of law to the contrary, in the event that a defendant fails to appear for a court hearing within the time the appearance ticket is returnable there is a rebuttable presumption that the court must issue an order to show cause why the defendant failed to appear instead of issuing a warrant.” MCL 764.9e(2). “The court may overcome the presumption and issue a warrant if it has a specific articulable reason to suspect that any of the following apply:

(a) The defendant committed a new crime.

(b) The defendant's failure to appear is the result of a willful intent to avoid or delay the adjudication of the case.

(c) Another person or property will be endangered if a warrant is not issued.” MCL 764.9e(3).

“If the court overcomes the presumption under [MCL 764.9e(2)] and issues a warrant, the court must state on the record its reasons for doing so.” MCL 764.9e(4).

5.Arrest in Lieu of Appearance Ticket

A police officer may take an “arrested person before a magistrate and promptly file a complaint as provided in [MCL 764.13] instead of issuing an appearance ticket as required under [MCL 764.9c(4)] if 1 of the following circumstances is present:

(a) The arrested person refuses to follow the police officer’s reasonable instructions.

(b) The arrested person will not offer satisfactory evidence of identification.

(c) There is a reasonable likelihood that the offense would continue or resume, or that another person or property would be endangered if the arrested person is released from custody.

(d) The arrested person presents an immediate danger to himself or herself or requires immediate medical examination or medical care.

(e) The arrested person requests to be taken immediately before a magistrate.

(f) Any other reason that the police officer may deem reasonable to arrest the person which must be articulated in the arrest report.” MCL 764.9c(5).

If acting under MCL 764.9c(5), a police officer “takes an arrested person before a magistrate and promptly files a complaint as provided in [MCL 764.13] instead of issuing an appearance ticket, the police officer must specify the reason for not issuing a citation in the arrest report or other documentation, as applicable, and must forward the arrest report or other documentation, as requested, to the appropriate prosecuting authority for review without delay.” MCL 764.9c(6). A person arrested under MCL 764.9c(6) “must be charged by the appropriate prosecuting authority or released from custody not later than 3 p.m. the immediately following day during which arraignments may be performed.” MCL 764.9c(7).

B.Citations to Appear¹ for Traffic Misdemeanors or Traffic Civil Infractions

1.Statutory Authority

Under the Michigan Vehicle Code (MVC), a police officer must issue a citation to a person who is arrested without a warrant for “a violation of [the MVC] punishable as a misdemeanor, or an ordinance substantially corresponding to a provision of [the MVC] and punishable as a misdemeanor, under conditions not referred to in [MCL 257.617, MCL 257.619, or MCL 257.727.]” MCL 257.728(1). However, where no arrest occurs, “[a] police officer may issue a citation to a person who is an operator of a motor vehicle involved in an accident if, based upon personal investigation, the officer has reasonable cause to believe that the person has committed a misdemeanor under [the MVC] in connection with the accident.” MCL 257.728(8) (emphasis added). See also MCL 257.742(3) (containing substantially similar language with respect to civil infractions). Additionally, an officer may issue a citation to a person he or she witnesses committing a civil infraction or who he or she has reason to believe is committing a civil infraction by violating certain load, weight, height, length, or width requirements. MCL 257.742(1)-(2).

Subject to the exceptions in MCL 764.9c, the citation must be filed in the district court in which the appearance is to be made. MCL 257.727c(1)(a); MCR 4.101(A) (civil infractions); MCR 6.615(A)(1)(a) (misdemeanors). There is no prohibition against filing a single citation that lists both a misdemeanor and a civil infraction. See MCL 257.727c(3).

A person arrested under the MVC without a warrant for a misdemeanor or civil infraction may, in lieu of being issued a citation to appear, demand to be brought to a judge or district court magistrate or to the family division of the circuit court for arraignment. MCL 257.728(1). If a nonresident demands an immediate arraignment, and a judge or district court magistrate is not available to conduct the arraignment or if an immediate trial cannot be held, the nonresident may deposit with the officer a guaranteed appearance certificate or a sum of money not to exceed $100 and be issued a written citation. MCL 257.728(5). However, a nonresident may not be issued a written citation if he or she was arrested for a violation of any offense listed in MCL 257.727(a)-(d). MCL 257.728(5). Requirements for nonresidents who are issued civil infraction citations are discussed in detail in Section 6.13.

2.Citation Requirements

The citation may serve as a sworn complaint and summons to command the initial appearance of the accused and to command the accused’s response regarding his or her guilt of or responsibility for the violation alleged in misdemeanor cases. MCR 4.101(A)(3)(a)-(b) (civil infractions); MCR 6.615(A)(2)(a)-(b) (misdemeanors). The citation must contain “the name and address of the person, the violation charged, and the time and place when and where the person shall appear in court.” MCL 257.728(1) (warrantless arrest for alleged misdemeanor violation). See also MCL 257.743 (requiring substantially similar information and additional information for alleged civil infraction); MCL 257.728(8) (requiring substantially similar information for traffic accidents allegedly involving a misdemeanor where no arrest is made). The officer must complete an original and three copies of the citation. MCL 257.728(1); MCL 257.728(8). The original must be filed with the court in which the appearance is to be made, the first copy is retained by the local traffic enforcement agency, the second copy is delivered to the violator if the violation is a misdemeanor, and the third copy is delivered to the violator if the violation is a civil infraction. MCL 257.727c(1).² See also MCL 257.743, which requires additional information pertaining to an accused’s right to admit or deny responsibility for a civil infraction citation.

“If the citation is issued to a person who is operating a commercial motor vehicle, the citation shall contain the vehicle group designation and indorsement description of the vehicle operated by the person at the time of the alleged violation.” MCL 257.728(9) (misdemeanors). See also MCL 257.743(5) (requiring substantially similar information be provided for alleged traffic civil infraction involving commercial motor vehicle).

3.Restrictions on the Issuance of Citations

MCL 257.728(1) prohibits the issuance of citations for the following offenses³:

•Leaving the scene of an accident resulting in serious impairment of a body function or death. MCL 257.617.

•Failing to give the proper information and aid after an accident. MCL 257.619.

•Committing a moving violation causing death or serious impairment of a body function to another person under MCL 257.601d. MCL 257.727(a).

•Operating a vehicle while intoxicated, visibly impaired, with any bodily alcohol content if under age 21, or while having a controlled substance in his or her body under MCL 257.625(1), MCL 257.625(3), MCL 257.625(6), or MCL 257.625(8), or a substantially corresponding ordinance. MCL 257.727(b).

•Causing death or serious impairment of a body function by operating a vehicle while intoxicated or visibly impaired, or while having a controlled substance in his or her body, MCL 257.625(4)-(5). MCL 257.727(b).

•Operating a vehicle while intoxicated or visibly impaired, with any bodily alcohol content if under age 21, or while having a controlled substance in his or her body, and having occupants under age 16 in the vehicle, MCL 257.625(7). MCL 257.727(b).

•Reckless driving, MCL 257.626, or a substantially corresponding ordinance, unless the officer deems that issuing a citation and releasing the person will not constitute a public menace. MCL 257.727(c).

•Not having in his or her immediate possession at the time of arrest a valid operator’s or chauffeur’s license, MCL 257.311, or a receipt for an already surrendered license, MCL 257.311a. However, if the officer can satisfactorily determine the identity of the person and whether the person can be apprehended if he or she fails to appear before the designated magistrate, the officer may issue a citation. MCL 257.727(d).

C.Summons to Appear

A court must issue a summons⁴ “if presented with a proper complaint and if the court finds probable cause to believe that the accused committed the alleged offense.” MCR 6.102(A). See also MCL 764.1a(1). However, a court may issue an arrest warrant, rather than a summons, if:

“(1) the complaint is for an assaultive crime or an offense involving domestic violence, as defined in MCL 764.1a.

(2) there is reason to believe from the complaint that the person against whom the complaint is made will not appear upon a summons.

(3) the issuance of a summons poses a risk to public safety.

(4) the prosecutor has requested an arrest warrant.” MCR 6.102(D). See also MCL 764.1a(2) and MCL 764.9a(1).

“A summons must contain the same information as an arrest warrant, except that it should summon the accused to appear before a designated court at a stated time and place.” MCR 6.102(C)(1). See also MCL 764.1a(3).

“A summons may be served by the court or prosecuting attorney by

(a) delivering a copy to the named individual; or

(b) leaving a copy with a person of suitable age and discretion at the individual’s home or usual place of abode; or

(c) mailing a copy to the individual’s last known address.

Service should be made promptly to give the accused adequate notice of the appearance date. Unless service is made by the court, the person serving the summons must make a return to the court before the person is summoned to appear.” MCR 6.102(C)(2). See also MCL 764.1a(3) and MCL 764.9a(3). If the accused fails to appear in response to a summons, the court may issue a bench warrant pursuant to MCR 6.103.” MCR 6.102(C)(3).⁵ See also MCL 764.1a(3).

Generally, “if a defendant fails to appear in court, the court must wait 48 hours, excluding weekends and holidays if the court is closed to the public, before issuing a bench warrant to allow the defendant an opportunity to voluntarily appear before the court.” MCR 6.103(A). “If the defendant does not appear within 48 hours, the court must issue a bench warrant unless the court believes there is good reason to instead schedule the case for further hearing.” MCR 6.103(A)(3). “The court must not revoke a defendant’s release order or forfeit bond during the 48-hour period of delay before a warrant is issued.” MCR 6.103(C). However, MCR 6.103(A) “does not apply if the case is for an assaultive crime or domestic violence offense, as defined in MCL 764.3, or if the defendant previously failed to appear in the case.” MCR 6.103(A)(1).

MCR 6.103(A)(2) permits a court to “immediately issue a bench warrant only if the court has a specific articulable reason, stated on the record, to suspect any of the following apply:

(a) the defendant has committed a new crime.

(b) a person or property will be endangered if a bench warrant is not issued.

(c) prosecution witnesses have been summoned and are present for the proceeding.

(d) the proceeding is to impose a sentence for the crime.

MCR 6.103 “does not abridge a court’s authority to issue an order to show cause, instead of a bench warrant, if a defendant fails to appear in court.” MCR 6.103(B).