Getting Domestic Violence Charges Dismissed (even if you’re guilty!)
In Michigan, there is a statute that can be used to avoid a conviction in a domestic violence case…even when evidence of guilt is overwhelming. The reason for this “second chance law” is that people who are good and decent sometimes make terrible mistakes and a terrible moment in time should not define a person or ruin his or her future. Michigan’s first offender domestic violence law, MCL 769.4a, provides for a plea to be taken under advisement so that a conviction is not entered. When the defendant completes a period of probation, the case is then DISMISSED. There is no public record of a conviction whatsoever.
Getting a prosecutor and judge to agree to a plea under advisement pursuant to MCL 769.4a is not always easy. In cases where an alleged victim is opposed to the First Offender Statute, things will be even more complicated. A great criminal defense lawyer can help a defendant maximize his or her chances of getting an under advisement plea pursuant to the domestic violence statute. Even in cases where a victim objects to this relief, the defense attorney may be able to negotiate a MCL769.4a resolution. Complainants in these cases can be a spouse, roommate, child, parent or anyone else sharing a domestic relationship.
Good people make mistakes and a person should not be defined by the single worst moment in life. In many cases a defendant is remorseful and the victim does not want his or her family member to be convicted of a crime and suffer the various consequences related to a criminal conviction. With meaningful therapy and some education, it is likely in most of these cases that a similar incident will never happen again. A domestic violence defense attorney who knows how to best work the system to obtain the best possible results is a defendant’s best hope.
Michigan Domestic Violence Defense Lawyers
The defense team with LEWIS & DICKSTEIN, P.L.L.C. has decades of experience successfully representing clients charged with domestic violence and getting the charges dismissed. We have a strategy for these cases that is second to none and a track-record of consistent success. Call us today for a free consultation at (248) 263-6800 or complete a Request for Assistance Form and we will promptly contact you.
Michigan Domestic Violence Statute
769.4a Assault on spouse, former spouse, individual with child in common, dating relationship, or household resident; plea or finding of guilty; deferral of proceedings; order of probation; previous convictions; adjudication of guilt upon violation of probation; mandatory counseling program; costs; circumstances for entering adjudication of guilt; discharge and dismissal; limitation; court proceedings open to public; retention of nonpublic record by department of state police; definitions.Sec. 4a.
(1) When an individual who has not been convicted previously of an assaultive crime pleads guilty to, or is found guilty of, a violation of section 81 or 81a of the Michigan penal code, 1931 PA 328, MCL 750.81 and 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. However, before deferring proceedings under this subsection, 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 availed himself or herself of this section. 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 this section.
(2) Upon a violation of a term or condition of probation, the court may enter an adjudication of guilt and proceed as otherwise provided in this chapter.
(3) An order of probation entered under subsection (1) may include any condition of probation authorized under section 3 of chapter XI, including, but not limited to, requiring the accused to participate in a mandatory counseling program. The court may order the accused to pay the reasonable costs of the mandatory counseling program. The court also may order the accused to participate in a drug treatment court under chapter 10A of the revised judicature act of 1961, 1961 PA 236, MCL 600.1060 to 600.1084. The court may order the defendant to be imprisoned for not more than 12 months at the time or intervals, which may be consecutive or nonconsecutive and within the period of probation, as the court determines. However, the period of imprisonment shall not exceed the maximum period of imprisonment authorized for the offense if the maximum period is less than 12 months. The court may permit day parole as authorized under 1962 PA 60, MCL 801.251 to 801.258. The court may permit a work or school release from jail.
(4) The court shall enter an adjudication of guilt and proceed as otherwise provided in this chapter 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 he or she receive counseling regarding his or her violent behavior.
(c) The accused violates an order of the court that he or she have no contact with a named individual.
(5) Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against the person. Discharge and dismissal under this section shall be without adjudication of guilt and is not a conviction for purposes of this section 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 sections 81(3) and (4) and 81a(3) of the Michigan penal code, 1931 PA 328, MCL 750.81 and 750.81a. There shall be only 1 discharge and dismissal under this section with respect to any individual.
(6) All court proceedings under this section shall be open to the public. Except as provided in subsection (7), if the record of proceedings as to the defendant is deferred under this section, the record of proceedings during the period of deferral shall be closed to public inspection.
(7) Unless the court enters a judgment of guilt under this section, the department of state police shall retain a nonpublic record of the arrest, court proceedings, and disposition of the criminal charge under this section. However, the nonpublic record shall 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 his or her 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 section 81 or 81a of the Michigan penal code, 1931 PA 328, MCL 750.81 and 750.81a, or a local ordinance substantially corresponding to section 81 of that act has already once availed himself or herself of 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 section 1076(5) of the revised judicature act of 1961, 1961 PA 236, MCL 600.1076.
(c) The department of 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.
(8) As used in this section:
(a) “Assaultive crime” means 1 or more of the following:
(i) That term as defined in section 9a of chapter X.
(ii) A violation of chapter XI of the Michigan penal code, 1931 PA 328, MCL 750.81 to 750.90h.
(iii) A violation of a law of another state or of a local ordinance of a political subdivision of this state or of another state substantially corresponding to a violation described in subparagraph (i) or (ii).
(b) “Dating relationship” means frequent, intimate associations primarily characterized by the expectation of affectional involvement. This term does not include a casual relationship or an ordinary fraternization between 2 individuals in a business or social context.