Domestic violence cases are different, and in many important ways.
A first time, simple domestic violence case is a misdemeanor punishable in Michigan by up to 93 days in jail and a fine, which is the same penalty of a misdemeanor retail fraud. But they are not retail frauds, and they are not reckless driving. DV cases contain very real and definable consequences that most similarly situated misdemeanors simply do not.
Domestic violence falls into the protected class of politically correct criminal offenses, such as drunk driving and sexual assault. These offenses turn traditional ideas considered critical to the criminal justice system on their head – principles such as being presumed innocent until being proven guilty beyond a reasonable doubt. These protections are thrown out and ignored when charged with a DV – where a defendant may find himself presumed guilty, and be forced to go to court to fight for his/her innocence.
Not all domestic violence cases are created equal. First, we should acknowledge that domestic violence is a real problem. There are true battered women and spouses out there, who are victims of the circle of violence – where they are in an abusive relationship, and they are being abused. Those cases are serious, they are tragic, they are prosecuted, and they are prosecuted for a reason.
On the other side of that coin there are cases that are an overreaction to a heated argument – two spouses yelling at each other and having a difficult evening. Tempers flare, one (or both) let their temper and their frustration get the better of them, and one of them (or even frequently both of them) call the police and report domestic violence. Then the police arrive, and there is a real problem. Because in nearly every instance where the police are called for domestic violence, they are going to arrest someone.
Domestic Violence – the arrest.
Yes, that is the practical reality in Michigan. A phone call to the police with a complaint for domestic violence will nearly always result in the police arresting someone for DV. While the police may not admit that, and you may not be able to file a Freedom of Information Act request to obtain an official written policy, for all intents and purposes a phone call to the police with a complaint of domestic violence is going to result in an arrest over 95% of the time. There might be scenarios and situations where there would not be an arrest made, but they are very rare. The police are going to arrest someone, and that is where your problems begin.
First, you are going to spend the night in jail – at least one night. One of the ways that domestic violence cases are different is that most of the time when you are arrested by the police for a misdemeanor, and taken to the police station, you might spend one night in jail. Maybe. The next morning, you will be given an appearance ticket that says you must appear in court within 10 or 14, with the address and phone for the court. Sometimes you will get the appearance ticket and be released immediately, without even spending the night in custody.
However, in domestic violence charges that is typically not the case. While there are no statistics for this, the police will frequently hold someone arrested for DV until they can be arraigned by a judge or magistrate in court. They do this because they want to insure that a judge or magistrate issues a set of bond conditions, starting with a no contact order. So if you are arrested on a Friday night, you can sometimes be held until Monday morning if there is not a judge available to arraign you on the weekend.
Domestic Violence – Bond conditions
One of the primary ways domestic violence cases are different is the issue of bond conditions. The consequences of a DV arrest can be very difficult and troubling for many people, most importantly professionals and others that must be licensed.
First and most importantly, nearly every DV base will include a no contact order as a condition of bond – as in over 99% of the time the defendant will be ordered by the judge to have no contact with the complaining witness. A no contact provision prohibits more than just face to face contact – it means you are not allowed to have any contact with your spouse or significant other. No phone calls. No texting. No emails. No nothing. In fact, it will include the restriction that you cannot even return home. The judge may allow you to return with the police to quickly pack some personal essentials, but not always.
But it does not stop with a no contact order. The other bond conditions frequently seen with domestic violence charges are more serious and more rigid than other misdemeanors. You will be prohibited from possessing or owning a gun. If you own guns, the court will order that they must be removed from your house. While that is an issue if you are a hunter or sportsman, it is a real problem if you are a police officer, a security guard, or anyone else that has to carry a gun as part of your employment.
Most police officers, prosecutors, judges, and courts, believe that domestic violence cases typically occur in the context of drinking alcohol. This belief is prevalent enough that alcohol will nearly always be another condition of bond. So even if there is no allegation of drinking in the police report, and no evidence that you were drunk when the police showed up to arrest you, bond conditions will frequently include a provision that you cannot drink alcohol, must attend AA meetings twice a week (or more), and even require alcohol and drug testing such as random PBT’s.
Domestic Violence: misdemeanor vs. felony
Simple domestic violence in Michigan is a 93 day misdemeanor. Aggravated domestic violence in Michigan is a one year misdemeanor. Aggravated domestic violence is defined as the victim having suffered serious physical injury. The standard focuses on whether the person needed immediate medical attention, and not whether they actually got immediate medical attention.
So simple domestic violence is 93 day misdemeanor, and aggravated domestic violence is a one year misdemeanor. The second simple domestic violence becomes a one year misdemeanor, with a one year potential jail sentence. The third domestic violence becomes a felony, with a maximum punishment of five years in prison. The second aggravated domestic violence is a felony, also with a possible penalty of five years in prison.
It may start small, as just a misdemeanor and therefore not very serious in the minds of many. But it can quickly mushroom from there, and become far more serious.
Domestic Violence – can the case be dismissed?
Most everyone has heard that in domestic violence cases the prosecutor will go forward with the case, and refuse to dismiss it, even when the complaining witness wants the case dropped and dismissed. Unfortunately, this is one of those times where the rumors are more fact than fiction.
It is very common in DV cases for the complaining witness to ask the prosecutor to dismiss the case and drop the charges. I have had many cases where the complainant has sat down with the prosecutor and said: “look, this was an argument that got out of control. Yes, I called the police, but I should have. That was a mistake. I do not want the case to go forward. I want my husband/boyfriend to be able to return home. I do not want a no contact order. I want to drop the charges.” More often than not, both judges and prosecutors will refuse to amend the bond conditions, or even discuss dismissing the case and dropping the charges.
So, what happens when the complaining witness tells the prosecutor “I want the case dismissed, I do not want the case to go forward”? The answer begins with the understanding of the difference in civil cases vs. criminal cases. In a civil case both are parties to the lawsuit – it is the plaintiff (the alleged victim) vs. the defendant. But if the alleged victim calls the police and a criminal charged is issued by the prosecutor, the prosecutor is the party representing the plaintiff, who is the “people of the state of Michigan.” The alleged victim is not a party in a criminal case, so the case can go forward even over their objection.
In fact, the alleged victim is just a witness for the party that brings the charges. So, the prosecutor will take a hard look at the case to determine if they can prove the case without that witness, without the alleged victim’s cooperation. It is fairly common for domestic violence cases to go to trial where the victim is not a witness for the prosecution; in fact, the victim will frequently be a witness for the defense.
But first the prosecutor is going to put the complaining witness in a very difficult position. The prosecutor will put a lot of pressure on the complainant to cooperate with the case and not drop it; most prosecutor’s offices have victim’s advocates to talk to the complainant about the circle of violence: “maybe you forgive them now, but they are going to be back tomorrow and assault you again. Do not let them do this to you.” If that does not work, the prosecutor will likely confront the complainant, by saying “did you make a false police report? If you get on the witness stand and say the defendant did not do anything then we might come after you.” The prosecutor will even threaten to charge the complaining witness with perjury, filing a false police report, or even obstruction of justice. Many times, it will become necessary to get a lawyer for the complainant to protect his or her rights.
Assuming all of threats and pressure does not work, and the complaining witness unwilling to cooperate, and still refuses to testify, how does the case go forward? The first place the prosecutor will look is the 911 tape. If the 911 tape simply says, “please come to my house, there’s been a domestic violence,” that is probably not helpful enough for the prosecutor to prove the case beyond a reasonable doubt. But if there is an extended 911 call, like “my husband is beating me right now, he just hit me in the mouth,” and when the police show up they see the complainant bleeding from the mouth, then the prosecution will go forward with that case. Can the police make out the case through the observation of injuries? Was there an excited utterance, where the complainant screams to the police officers “he just punched in the eye,” which is a legal exception to the rule against hearsay? Were there any independent witnesses, like the couple’s 16-year-old son, or a neighbor?
The bottom line is if the prosecution and the police can construct a case against the defendant that does not require the complaining witness’s cooperation, then they are going to try and do that.
Domestic Violence convictions and the right to possess a gun.
A first-time domestic violence is a simple misdemeanor, and in the run of the mill misdemeanor case a conviction will not effect your 2nd Amendment right to possess a gun. But once again, domestic violence cases are different. They are special and unique, because unlike almost every other misdemeanor they restrict your ability to own and possess a firearm. Federal law legislates that a felony conviction makes you ineligible to own and possess a firearm. However, under both federal and Michigan law, a misdemeanor conviction for domestic violence carries the same restriction against possessing a firearm.
Domestic violence – the 769.4a plea offer.
Domestic violence is a crime that can be enhanced. So, while a first time domestic violence is a misdemeanor, a 3rd simple domestic violence (or a 2nd aggravated domestic violence) is a felony in Michigan. As a result, there are important issues to consider when facing your first DV charge.
In Michigan there is a statute that authorizes first time domestic violence defendants to be offered a deferment program, authorized by statute in MCL 769.4a. Under this deferred sentencing program, a first time offender can be given a special form of probation for anywhere from 12 to 24 months, wherein if the defendant satisfies all of their terms and conditions, the case is dismissed and they do not have a criminal record. Those terms and conditions frequently include completion of batterers counseling, anger management therapy, community service, pay a fine, and attend a victims’ impact panel
Some cases, and some defendants, are properly resolved under 769.4a. If the defendant is a person who is not likely to re-offend, and will successfully complete probation, then it might be a good option. However, it is not a cure all. For example, while 769.4a may make you eligible under Michigan law to own and possess a firearm, it may not under federal law. There are multiple cases of the Feds denying a federal Brady background check for a person with a dismissal under 769.4a. It can be very hit or miss.
A bigger problem is a second or subsequent DV charge. Frequently, a first domestic violence charge could be one that is defendable. But the defendant thinks “I have this opportunity to plead guilty under this deferred sentencing program that allows me to just wash my hands with this and be done, and I will not even have a criminal record. Why wouldn’t I do that?” The short answer is that this will still count as your first conviction.
No, it is not really gone. The police know about it, prosecutors know about it, and courts know about it. The next time that person is arrested, they are subject to being charged with a second offense, and the time after that they are likely facing a felony. So, taking a plea under 769.4a concedes a ton of power to your spouse/significant other, and to law enforcement, because you do not have the protection of 769.4a the next time you are arrested.
Many times, the first domestic violence charge is a weak case. That is why the prosecution signs off on 769.4a, and the court grants it, to begin with. The complainant did not have any visible injuries, there was no excited utterance, there was not a helpful 911 call, and there were no independent witnesses. The complainant wants the case dismissed, so the prosecution offers 769.4a. The problem becomes the next time you are arrested, what happens if it is a much more difficult case to defend and fight at trial. Now there is a 911 call, independent witnesses, and physical injuries. 769.4a was used on the first case, so now it is gone. The case you should have fought and defended was the first one, but now it is too late. But the defendant pled guilty because his public defender or retained lawyer told him to just take 769.4a. The defendant did not want to hire a lawyer, or hired a lawyer but did not want to spend a lot of money to go to trial.
The moral of the story is very simple: acquittals, not guilties, and dismissals are always better that 769.4a.
Domestic Violence and PPO’s.
Restraining orders, commonly called personal protection orders, or PPO’s, in Michigan, are commonly tied together with domestic violence charges.
Frequently, victims of domestic violence are counseled by prosecutors and victim advocates to get a PPO against the defendant. They send the complainant to the circuit court, where there are simple forms to fill out to apply (or petition) for a PPO. All the complainant has to do is literally review the boxes, check which boxes apply to you, and then sign your name and then that Petition goes to the judge and the judge decides whether or not to enter an Ex Parte PPO. Ex Parte means one sided, so the PPO gets entered against the respondent without even a hearing.
Much like domestic violence prosecutions, a PPO (even an Ex Parte PPO) makes it illegal for the respondent to own or possess a firearm. A PPO can also prevent the respondent from having contact with the petitioner, from being able to go to certain places where the complainant lives, works, or frequents (such as health clubs or restaurants).
PPO’s are yet another complicating factor in the respondent’s life, and it is sometimes difficult to understand the impact that they can have. They are not a criminal charge, but they are sometimes referred to as quasi criminal. It is important to understand that just because it is not criminal, does not mean that it is not important. PPO’s can really effect even ruin people’s lives, depending on the circumstances of the case.
Satawa Law. We remain committed to Defending your Rights, and Protecting your Future.
Mark A. Satawa
SATAWA LAW PLLC
Satawa Law. Defending your rights, protecting your future.