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Information on crimes that are commonly charged in Michigan. If you need legal assistance, please contact a lawyer.

 

Domestic Violence

Statute: MCL 750.81
Crime Group: Person
Sentence Class: Misdemeanor (1st/2nd Offense); G (3rd  Offense)
Minimum Sentence: 0 Months
Maximum Sentence1: 93 days (1st Offense); 1 year (2nd Offense); 5 Years (3rd Offense)
Maximum Fine: $500.00 (1st Offense); $1,000.00 (2nd Offense); $5,000.00 (3rd Offense)
Jury Instructions: MCJI2d 17.02a
Sex Offender Registration Required: No

Statutory Language:

(1) Except as otherwise provided in this section, a person who assaults or assaults and batters an individual, if  no other punishment is prescribed by law, is guilty of a misdemeanor punishable by imprisonment for not more than 93 days or a fine of  not more than $500.00, or both.

(2) Except as provided in subsection (3) or (4), an individual who assaults or assaults and batters his or her spouse or former spouse, an individual with whom he or she has or has had a dating relationship, an individual with whom he or she has had a child in common, or a resident or former resident of his or her household, is guilty of a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than $500.00, or both.

(3) An individual who commits an assault or an assault and battery in violation of  subsection (2), and who has previously been convicted of  assaulting or assaulting and battering his or her spouse or former spouse, an individual with whom he or she has or has had a dating relationship, an individual with whom he or she has had a child in common, or a resident or former resident of  his or her household, under any of  the following, may be punished by imprisonment for not more than 1 year or a fine of  not more than $1,000.00, or both:
     (a) This section or an ordinance of  a political subdivision of  this state substantially corresponding to this section.
     (b) Section 81a, 82, 83, 84, or 86.
     (c) A law of  another state or an ordinance of a political subdivision of  another state substantially corresponding to this section or section 81a, 82, 83, 84, or 86

(4) An individual who commits an assault or an assault and battery in violation of  subsection (2), and who has 2 or more previous convictions for assaulting or assaulting and battering his or her spouse or former spouse, an individual with whom he or she has or has had a dating relationship, an individual with whom he or she has had a child in common, or a resident or former resident of  his or her household, under any of  the following, is guilty of  a felony punishable by imprisonment for not more than 5 years or a fine of not more than $5,000.00, or both:
  (a) This section or an ordinance of  a political subdivision of  this state substantially corresponding to this section.
  (b) Section 81a, 82, 83, 84, or 86.
  (c) A law of  another state or an ordinance of a political subdivision of  another state substantially corresponding to this section or section 81a, 82, 83, 84, or 86.

(5) This section does not apply to an individual using necessary reasonable physical force in compliance with section 1312 of the revised school code, 1976 PA 451, MCL 380.1312

(6) As used in this section, "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.

Discussion:

One of  the most basic forms of  crime is an “assault” or a “battery”. Technically, the two terms have different meanings: a “battery” is a forceful, violent, or offensive touching of  a person, whereas an “assault” is a realistic threat to harmfully or offensively touch another person. Nonetheless, Michigan law treats the two essentially the same: if  a defendant threatened to hit someone (either through words or actions) or actually did hit them, the punishment is the same.

A “domestic assault” is simply an assault against someone with whom the defendant has a close relationship: they are (or were married), have children in common, are (or were) in a “dating relationship”, or live (or previously lived) together. This statute commonly applies to spouses, former spouses, roommates, children, and co-parents. These definitions are very broad; if  two people dated for a couple of  months in high school and twenty years later they got into a physical altercation that had nothing to do with their decades-old dating relationship, it would still technically be a “domestic assault”. Similarly, if  a 60-year-old man strikes his 40-year-old son who has not lived with him in over twenty years, it is a “domestic assault” because they previously lived together.

Domestic assault charges in Michigan come in three forms: a “first offense” (which is a misdemeanor with a maximum jail sentence of 93 days), a “second offense” (a misdemeanor with a one-year maximum jail sentence), and a “third offense” (a felony with a five-year maximum prison sentence).

To prove domestic assault, the prosecution must each of  the following elements of  the crime beyond a reasonable doubt:

  1. The defendant assaulted or battered another individual. The touching must have been intended by the defendant, that is not accidental, and it must have been against the will of  the other individual; and
     
  2. At the time, the assaulted individual was either the defendant’s spouse, former spouse, had a common child with the defendant, at one time was a resident of  the same household as the defendant, or was an individual the defendant has been in a dating relationship with.

For a “second offense”, the prosecution must prove that the defendant has previously been convicted of  a domestic assault. For a “third offense”, the prosecution must prove that the defendant has previously been convicted of  two or more domestic assaults. It should be noted that these prior convictions can not be used as evidence that the defendant committed an assault in the present case.

Most prosecuting attorneys in Michigan have policies in place regarding a Domestic Violence 3rd offense that restrict them from pleading this crime down. Very rarely, if  the case is very weak, the prosecution may offer to plea down to a Domestic Violence 2nd offense, which is a misdemeanor with less severe penalties. It should be noted that this offense can be brought any time there are two or more prior convictions, even if  all of the prior convictions were charged as a “first offense”.

It should also be noted that domestic violence charges carry significant consequences under federal law. A person convicted of domestic violence in any court (including state courts) is prohibited under 18 USC 922(g)(8) from possessing a firearm. This applies even on first offenses. A violation of this prohibition is a serious federal offense, and this consequence is extremely important for defendants charged with domestic violence to understand.

For those defendants who have not previously been convicted of  a domestic assault, there is a statutory “diversion program” that allows the defendant to go on probation after offering a plea of  guilty, and if  the probation is completed successfully, the charge is dismissed without a conviction. If  probation is not completed successfully, the conviction enters without a trial. This program is at the court’s discretion, and must be done in consultation with the victim. A diversion under this program does not result in a federal firearms ban, since no conviction is entered.

In instances where the defendant is between the ages of  17 and 21 (or between 21 and 24 years of  age with approval from the prosecutor) the court—at its discretion—may allow a defendant to utilize the “Holmes Youthful Trainee Act” (HYTA). This program allows the court to order the defendant to serve a probationary period in lieu of  a conviction and sentence. If a defendant successfully completes the probation, the case will be dismissed and there will be no public record of the offense. As with the built-in statutory diversion program, successful completion of a HYTA probation does not result in a federal firearms ban, since no conviction is entered. In the event a defendant does not successfully complete the probation, the judge will sentence the defendant without a trial and revoke the probation.

A defendant convicted under this statute will typically be sentenced according to the Michigan sentencing guidelines. Because these guidelines consider both the nature of  the current crime and the past record of  the defendant—and because the guidelines are “advisory only” and judges are not required to follow them—it is impossible to predict a likely sentence without taking a look at the specific facts of  a defendant’s case and reviewing the past record of a defendant, and even then such predictions are an “educated guess” at best.

1Maximum sentence shown is for a first-time felony offender. Prior felonies make a defendant liable for “Habitual Offender” (“HO”) sentencing enhancement. Thus, for a defendant with one prior felony or attempted felony (“HO2”), the maximum sentence raises to 90 months (7.5 years); for a defendant with two prior felonies or attempted felonies (“HO3”), the maximum sentence raises to 120 months (10 years); and a defendant with three or more prior felonies or attempted felonies (“HO4”) faces a maximum sentence of 15 years in prison. Additionally, defendants with prior convictions for drug offenses—even in other jurisdictions—are subject to doubling of the maximum fines and imprisonment.

 

 

 

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