Domestic Violence Charges, Penalties, and More
The Michigan Domestic Violence Defense lawyers with LEWIS & DICKSTEIN, P.L.L.C. are dedicated to the passionate, tenacious, and compassionate representation of those charged with domestic violence.
Collectively, we have decades of experience successfully defending against domestic violence allegations in Michigan and we are adept at handling all aspects of domestic violence cases. We know that the consequences to clients and their families due to domestic violence allegations can be life-changing in a tragic way. We stop at nothing in order to protect our clients from being over prosecuted, falsely prosecuted, or from being taken advantage of by a Michigan prosecutor or a judge who does not care enough to adequately consider our client’s personal situation.
Some people say that domestic violence is a crime without witnesses. Often times the only witnesses to an alleged offense are the people involved. Sometimes minor children are witnesses. Since domestic violence most often takes place without the presence of witnesses, it is a charge that is easily abused. False reporting of domestic abuse is an epidemic in Michigan. False reporting and false accusations of domestic violence and abuse regularly occur when there is a contentious divorce and one spouse is seeking to gain an advantage over the other relative to assets, the marital home, or child custody. If a false report is made, even if the complainant doesn’t follow through or admits the allegations were untrue, the prosecutors can be relentless and refuse to acknowledge the possibility of a fabricated allegation.
Domestic Violence Offenses
Michigan state law punishes a first offense for domestic violence as a misdemeanor offense subject to up to 93 days in jail and/or a maximum $500 fine. Domestic violence or domestic assault is an assault or assault and battery when any of the following also exists:
- the complaining witness is a spouse or former spouse;
- the complaining witness has a child in common with the Defendant;
- the complaining witness has or had a dating relationship with the Defendant; or
- the complainant witness is a resident or a former resident of the same household as the Defendant;
- the complainant is a child of the defendant.
Possible Enhanced Penalties
The maximum possible sentence for domestic violence can increase to one year if there is a prior conviction. A defendant with two or more prior convictions will be charged with a felony and see his or her maximum possible sentence increase two years in prison (Michigan Department of Corrections). A defendant charged with the 2-year felony will also be subject to a possible habitual offender enhancement if he or she has any prior felony convictions.
The possible prior convictions that can increase the punishment or the level of the domestic assault charge includes the following:
- Aggravated Assault or Assault with the Infliction of Injury (MCL 750.81a);
- Felonious Assault (Assault with a Dangerous Weapon) (MCL 750.82);
- Assault with Intent to Commit Murder (MCL 750.83);
- Assault with Intent to do Great Bodily Harm Less than Murder (Assault GBH) (MCL 750.84);
- A violation of a local ordinance that is substantially similar to any of the previously described offenses;
- A violation of a law of another state or local ordinance that substantially corresponds to any of the above statutes.
A Clean Record – When All Else Fails
Even for those defendants who are “guilty” and do not wish to have a trial, there is an option whereby a conviction can still be avoided under the right circumstances. Although many judges and prosecutors will initially be staunchly opposed to a domestic violence charge being taken under advisement and complainants may be extremely reluctant, a great Michigan Domestic Violence Attorney will often have the knowledge, persuasive ability, and persistence to achieve such an extraordinary result. Under MCL 769.4a the Court may place the Defendant on probation after a finding of guilt (by plea or trial conviction). No judgment is entered and no conviction is placed on the defendant’s criminal history. If the Defendant successfully completes the terms of probation, the Court discharges the Defendant and dismisses the proceedings without a finding of guilt.
In order to receive 769.4a the Defendant must meet the following criteria:
- The Defendant has no previous conviction for assaultive crimes in this or another state;
- The Prosecuting Attorney, in consultation with the complaining witness, consents to the under advisement status.
Every defendant who is granted probation under MCL 769.4a is not treated the same. Some defendants are given sentences that are fair and balanced and others are given sentences that are onerous, expensive, and difficult to successfully complete. In most cases, if a defendant is represented by a successful, retained attorney with extensive experience handling these cases, a sentence can be procured that is fair and not unduly burdensome.
There are provisions under some local ordinances (if the Defendant is convicted under a local ordinance) that also give the Defendant the possibility of having the conviction expunged from the public record. Also, a Defendant that does not meet the criteria under 769.4a or a local diversionary program, may be able to have his or her case taken under the Holmes Youthful Trainee Act (HYTA). If a defendant is granted HYTA, a conviction is never entered and the court files a dismissal when the defendant successfully completes probation.
Violation of Probation in a Domestic Violence Case
A finding that a defendant violated probation can undue an under advisement status granted by the court. A violation of probation, probation violation, or VOP, if substantiated, can result in the loss of a deferred disposition. In fact, the Court is required to enter the plea of guilty and impose sentence if a violation of probation is substantiated based upon any of the following:
- the Defendant fails to attend and participate in counseling if directed to do so;
- the Defendant violates any outstanding no contact provisions placed on the Defendant’s bail or bond;
- the Defendant commits an assaultive crime while out on probation.
If there is a violation of probation, all is not lost and much can be done to save what seems like a hopeless situation. Only the most experienced, resourceful, and created domestic violence lawyers know the techniques and procedures to (a) keep their clients of out jail, (b) avoid a conviction (when possible), and (c) prevent increased probation conditions or length.
Consequences of a Domestic Violence Conviction
A conviction for domestic violence can result in the loss of the right to carry a concealed weapon, the ability to hunt, and much more. Federal and state law prohibitions can arise upon a conviction for a domestic violence or domestic assault crime, including the right to purchase, possess, transport, and/or obtain a Carrying a Concealed Weapon (CCW) permit. This could also have negative repercussions on employment in which possession of a firearm is necessary.
Domestic violence or domestic assault allegations can affect an individual’s parental custodial rights under MCL 722.23(k), MCL 722.25(1), and MCL 722.27a(3). It is not uncommon for allegations of domestic violence or domestic assault to be raised precisely for this impact during a custody dispute. False or fabricated domestic violence, criminal sexual conduct, domestic assault, stalking, and other similar offenses are frequently fabricated when there is a dispute regarding child custody, visitation, possession of a home or house, and disputes regarding the division of marital property and assets.
Immigration Consequence of a Domestic Violence Plea or Conviction
Persons that are not citizens of the United States need to be cautious when faced with domestic violence or domestic assault allegations. This type of offense can lead to removal proceedings and deportation in some instances. MCL 769.4a will NOT protect aliens facing potential immigration consequences based upon an allegation of domestic violence – it is still considered a conviction for immigration purposes. It is remarkable how many criminal defense attorneys are not aware that a plea of guilty or no contest that is taken under advisement and eventually dismissed, is still a conviction as far as an immigration court is concerned.
Personal Bond or Personal Recognizance Bond is the Goal
A court can order a number of bail or bond conditions relating to domestic violence or domestic assault allegations that are unpleasant, burdensome, and expensive. The possible bond conditions may include, no contact with the complaining witness; no contact with your children, no contact with a marital residence or other property (even if the Defendant is the owner or leaser of the residence); tether (satellite, GPS or alcohol); substance abuse testing; substance abuse counseling; monitoring by pretrial services or probation; inability to possess a firearm or dangerous weapon (an oftentimes an order requiring the defendant to surrender firearms to the local police for destruction), domestic violence therapy, anger management counseling, and much more. A retained lawyer can help you get a personal bond. A personal bond is a bond where no money is posted and there is only a promise of the defendant to appear in court and abide by bond conditions.
Domestic Violence Probation Conditions
The Court can also order burdensome probationary conditions when a defendant is convicted of domestic violence or domestic assault-related offense such as (but not limited to): no contact with the complaining witness; cannot go to the residence of the complaining witness (even if the Defendant is the owner or leaser of the residence); tether; domestic violence counseling; anger management counseling; substance abuse testing; substance abuse counseling; community service; monitoring by probation; house arrest, payment of fines and costs; inability to possess a firearm or dangerous weapon, and much more. The maximum term of probation for misdemeanor domestic violence is two years and the maximum for a felony charge is five years. The longest sentences and most stringent probations are often given in Oakland County, Wayne County, Macomb County, Washtenaw County, Livingston County, and throughout Southeastern Michigan.
We Can Help You
An individual accused of a domestic violence-related offense should hire an experienced criminal defense attorney immediately to assist him or her. As noted, the consequences of such a conviction can affect that person’s freedom, reputation, employment, and relationship with his or her family and children.
If you are accused of domestic assault or charged with a domestic violence-related offense, please do not hesitate to call one of the most experienced, zealous Michigan domestic violence attorneys with LEWIS & DICKSTEIN, P.L.L.C.
Call us today at (248) 263-6800 for a free consultation, or complete a Request for Assistance Form and we will contact you promptly.