Michigan Criminal Law: Conviction/Post Conviction; Domestic Violence First Offender Diversion under MCL 769.4a
Simply because a person is charged, does not mean they will be convicted. The burden of proof is on the Prosecutor to prove the charges beyond a reasonable doubt. Anyone charged is presumed innocent.
However, in certain situations, with certain types of charges, if a person meets the right criteria, and if a person is willing to admit they did the alleged act, there still may be ways that they could plead guilty or no-contest (“nolo-contendre”) and keep a conviction off their general public record.
In Michigan, individuals charged with Domestic Violence, First Offense, may be eligible, if the prosecutor consents with input from the alleged victim, to plead guilty pursuant to special program set up for first-time offenders pursuant to MCL 769.4a.
Pursuant to section 1 of this statute:
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… 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. MCL 769.4a.
This option is only available for alleged first-time offenders. If a person has a prior Domestic Violence conviction, they are not eligible. The presiding judge will decide if a person is granted this status usually at the sentencing. A pre-sentence interview and report of some kind is usually required so the court can verify a person’s status.
While this status keeps the file sealed from the general public, the State Police are still required to, pursuant to section 7, “retain a nonpublic record of the arrest, court proceedings, and disposition of the criminal charge under this section” and certain individuals and entities (prosecutors, law-enforcement, etc.) will still have access to the file and may view the matter as a conviction in certain situations if the accused is ever charged again. MCL 769.4a.
Domestic Violence charges, by their definition, involve family members and individuals in specific types of domestic relationships. These charges have important collateral consequences that impact a person’s position in other types of legal issues, notably divorce proceedings, immigration proceedings, parental-rights/termination proceedings, custody proceedings, and more.
Even if granted this diversionary status, there still may be collateral consequences and the underlying allegations may still be used in these other proceedings. Before considering any plea, please note the potential collateral issues that may go beyond just the criminal charges themselves and consult with attorneys who work on the collateral matters if applicable (i.e, immigration-law attorneys if a person has some questions about how a Domestic Violence Charge would impact their status, family-law attorneys if a person is in a divorce or custody proceeding, etc).
Further, even if this status is granted and the accused completes their term of probation, the alleged acts themselves may be used against the defendant for the purposes of a MRE 404b prior acts motion if the accused ever picks up new Domestic Violence or Domestic Violence related charges in the future.
For more information on Michigan criminal law, click here.
For information on Michigan No-Contest pleas, click here.
For information on Michigan Personal Protective Orders, or “PPO’s” or “Restraining Orders,” click here.
For information on Michigan Divorces, click here.
For information on steps to file a divorce in Michigan, click here.
For information on Domestic Assault & Battery, click here.
For information on Interference with an Electronic Communications Device, click here.
For information on Assault and Battery (Misdemeanor), click here.
For information on Assault by Strangulation, click here.
Our experienced and dedicated attorneys have represented clients regarding a variety of charges throughout the state of Michigan. We fight hard for our clients. For a free initial consultation, please call our Lansing office at (517) 507-5077.
If you need specific legal advice for your particular circumstances, I encourage you to privately consult with a lawyer. Any charged with a criminal offense is presumed innocent unless proven guilty beyond a reasonable doubt. The following series of posts is for general educational purposes only. Circumstances may vary significantly. If you need specific legal advice, please privately consult with a lawyer.