Deferring First-Time Domestic Violence Convictions

Under Michigan law, a person convicted of domestic violence or aggravated domestic violence for the first time may have the opportunity to earn a dismissal without entry of a conviction upon successful completion of a probationary period. Like other diversion programs, MCL 769.4a is intended to target offenders who are unlikely to repeat the offense or have an underlying, treatable issue that may have caused the offense. For these persons, the domestic violence event may have occurred as a result of addiction or abuse of drugs and/or alcohol, underlying mental health issues, or a lack of education on how to handle severe stressors or anger or issues related to power and control.

769.4a is unavailable to an offender until he has been convicted of a domestic violence charge via a guilty plea or a finding of guilt by the court. It is available only to first-time domestic violence offenders who do not have any convictions of other assaultive crimes (e.g. assault and battery), and may only be used once.

Both the judge and prosecutor must consent to the offender receiving deferment of the conviction. The prosecutor is also required to consult with the victim. Though the prosecutor can choose to give or withhold consent against the victim's wishes, the victim's wishes are a strong factor in that decision. In situations with an unfriendly victim, the help of an experienced lawyer is essential to demonstrate to the prosecutor that the offender still deserves this second chance.

If the judge, prosecutor, and offender all consent to the deferment of the domestic violence conviction, the offender will then undergo up to two years of probation. The probation officer can require a variety of terms and conditions. Typically, probation includes regular meetings with the probation officer, educational domestic violence classes, counseling, community service, and payment of fines and costs. Probation can also include terms and conditions specific to the nature of the domestic violence event and the offender, such as prohibition of alcohol and drug use, attendance of domestic violence classes that address power and control issues, possible attendance of anger management courses, prevention of any contact with the victim, and participation in drug treatment court. Probation can also include up to 93 days of jail time; however, this is rare.

If the offender violates a term of the probation, the court can remove the deferment, enter the conviction, and proceed to sentence the offender according to the misdemeanor domestic assault conviction. This is discretionary. Depending on the nature of the violation, the court may allow deferment and probation to continue. However, if one of the following situations occur, the court must revoke deferment: (1) the offender commits an assaultive crime; (2) the offender violates a court order to receive counseling; or (3) the offender violates a court order to have no contact with an individual.

Upon successful completion of probation, the conviction will be dismissed and only a nonpublic record of the conviction will remain. Though it is nonpublic, the record is accessible to certain government employees in the course of their duties or when evaluating an offender's current government employment or application for employment. The nonpublic record also ensures that any offender can only use deferment under 769.4a once.

The dismissed conviction is still considered a prior conviction--despite the dismissal--if the offender is later convicted of another domestic violence charge. This means that the offender will be subject to increased penalties for the new conviction as a repeat offender.

Domestic violence convictions can lead to severe consequences, affecting your ability to contact your family and your current and future employment. Deferment under 769.4a can be an effective way to handle a conviction; however, it is important to contact an experienced defense attorney as soon as possible to get the best results and possibly avoid a conviction altogether.

By George Zulakis, Attorney at Law

& Elizabeth Kingston, Law Clerk