Probation in a Michigan Domestic Violence Case: Length and Conditions

In a Michigan domestic violence case, probation can last up to 2 years for a misdemeanor and up to 3 years for most felonies, and it comes with a list of required conditions plus whatever additional conditions the judge finds appropriate.^[1][6][11] Unlike most probationers, a person on probation for a domestic violence offense is not eligible for early discharge under the general probation statute.^[5]

This page covers the time limits, the conditions that are mandatory, the ones a judge may add, and how an order ends or changes. What happens after an alleged violation is in Probation violations.

When can a judge order probation?

A court may place a defendant on probation when the defendant has been found guilty by verdict or plea and the court determines that the defendant is not likely again to engage in an offensive or criminal course of conduct and that the public good does not require that the defendant suffer the penalty imposed by law.^[12] The offenses for which probation is unavailable are murder, treason, first-degree and third-degree criminal sexual conduct, armed robbery and major controlled substance offenses; domestic assault, strangulation and stalking are not on that list.^[13]

The Legislature describes probation as "a matter of grace requiring the agreement of the probationer to its granting and continuance."^[14] It is an alternative the court may choose, and it can be combined with a jail term served as a condition of probation.^[7]

How long can probation last?

Type of conviction	Maximum probation term	Source
Offense that is not a felony, such as first-offense or second-offense domestic assault	Not more than 2 years[1][15]	MCL 771.2(1)
Felony, general rule	Not more than 3 years; may be extended not more than 2 times, by not more than 1 additional year each, on specific findings[1]	MCL 771.2(1)
Stalking under MCL 750.411h	Not more than 5 years[2]	MCL 771.2a(1)
Aggravated stalking	Any term of years, but not less than 5 years[3]	MCL 771.2a(2)
A "violent felony" as defined in the Corrections Code	Not more than 5 years[16]	MCL 771.2a(4)

These limits date from April 1, 2021, when the current text of MCL 771.2 took effect. Older material that gives 5 years as the general felony limit describes the earlier law.^[1]

For the Code of Criminal Procedure, "felony" means an offense punishable by imprisonment for more than 1 year or one expressly designated a felony.^[15] The 93-day and 1-year domestic assault misdemeanors therefore fall under the 2-year limit.^[15][17][18]

A felony term can be extended only if the court finds a specific rehabilitation goal that has not yet been achieved, or "a specific, articulable, and ongoing risk of harm to a victim that can be mitigated only with continued probation supervision."^[1] The extension language applies to felonies; the subsection contains no extension for the 2-year misdemeanor limit.^[1]

Why does the early-discharge rule not apply in domestic violence cases?

The general rule, in place since the same 2021 reforms, is that after completing half of the original probation period a probationer may be eligible for early discharge.^[4]

The statute then lists offenses that are "not eligible for reduced probation." The list includes:

• A domestic violence related violation of MCL 750.81 or 750.81a.^[5]
• An offense involving domestic violence as that term is defined in MCL 400.1501.^[5]
• A violation of MCL 750.84, which covers assault with intent to do great bodily harm and assault by strangulation.^[19]
• A violation of MCL 750.411h (stalking) or MCL 750.411i (aggravated stalking).^[19]

The statute does provide an early-discharge hearing, with notice to the victim, for a misdemeanor violation of MCL 750.81 or 750.81a "that is eligible for early discharge."^[20] Read together with the exclusion above, that hearing is for assault cases that are not domestic violence related.^[20][5]

One point is left open by the texts. MCL 771.2(3) and the court rule on early discharge each say they do not prohibit the court from considering a probationer for early discharge "at the court's discretion."^[21] Neither says how that language applies to a probationer whom subsection (10) makes ineligible for reduced probation, and the sources used for this guide do not resolve it.^[21] A person on probation for a domestic violence offense cannot rely on the half-term process.^[5]

Conditions every probation order must contain

MCL 771.3(1) lists conditions that apply to every probationer:^[6]

• Do not violate any criminal law of Michigan, the United States or another state, or any ordinance.^[6]
• Do not leave the state without the court's consent.^[6]
• Report to the probation officer monthly or as often as the officer requires, in person, virtually or in writing.^[6]
• Pay restitution to the victim of the course of conduct giving rise to the conviction.^[22]
• Pay the crime victim rights assessment and the minimum state cost.^[6]
• In circuit court, pay a probation supervision fee.^[6][23]

The dollar amounts are in Fines, costs and fees, and restitution is covered in Restitution in domestic violence cases.

Conditions the judge may add

Jail as a condition of probation

The court may order imprisonment in the county jail for not more than 12 months, at times or intervals within the probation period, but the confinement must not exceed the maximum period of imprisonment provided for the offense if that maximum is less than 12 months.^[7] See Jail and prison: what sentences are possible.

Treatment, counseling and monitoring

MCL 771.3(2) allows community service, inpatient or outpatient drug treatment or drug treatment court, mental health treatment, mental health or substance abuse counseling, a community corrections program, house arrest, electronic monitoring and a residential probation program.^[8] The statute does not name batterer intervention as such; that kind of program is ordered under the counseling provisions and under the court's general authority to impose "other lawful conditions of probation as the circumstances of the case require or warrant."^[8][11] What those programs involve is described in Batterer intervention programs.

Protective and no-contact conditions

The court may make probation "subject to conditions reasonably necessary for the protection of 1 or more named persons."^[9] This is the statutory basis for a no-contact condition after sentencing. When a probation order contains such a condition, the court or a law enforcement agency must enter it into the Law Enforcement Information Network (LEIN), and remove it if the condition is rescinded.^[24]

A probation no-contact condition is a different order from the bond condition that applied while the case was pending and from a personal protection order. The differences are explained in PPO vs. no-contact order vs. restraining order and No-contact orders explained.

Stalking cases

For stalking or aggravated stalking, the court may order the probationer to refrain from stalking any individual, to refrain from any contact with the victim of the offense, and to be evaluated for psychiatric, psychological or social counseling and receive it at his or her own expense if the court finds it appropriate.^[25]

How the judge is supposed to choose conditions

Conditions are not meant to be a standard package. By statute they "must be individually tailored to the probationer, must specifically address the assessed risks and needs of the probationer, must be designed to reduce recidivism, and must be adjusted if the court determines adjustments are appropriate."^[26]

The same subsection directs the court to consider the input of the victim and to specifically address the harm caused to the victim, the victim's safety needs and other concerns, including any request for protective conditions or restitution.^[26] A victim who wants a particular condition, or who wants a no-contact condition relaxed, can raise it through the prosecutor's office or in a statement at sentencing; see Victim impact statements.

Costs have their own limits. If costs are ordered as a probation condition, they must be limited to expenses specifically incurred in prosecuting the defendant, providing legal assistance to the defendant, and supervising the probationer.^[27] The court may not order them unless the probationer is or will be able to pay them during the term of probation.^[28]

Changing the order, and how probation ends

The court must fix the period, conditions and rehabilitation goals of probation in an order that becomes part of the record, and it "may amend the order in form or substance at any time."^[10] That is the route for either side to ask for a change. A no-contact condition is part of that order, and under the statute it is the court that may amend it.^[10][9]

When the probation period ends, the probation officer reports to the court. On receiving the report the court may discharge the probationer from further supervision or extend the probation period as the circumstances require, so long as the maximum probation period is not exceeded.^[29]

Probation on a deferral

A person whose case is deferred under MCL 769.4a is also placed on probation, and that order may include any condition authorized by MCL 771.3, including a mandatory counseling program at the person's expense.^[30] The difference is in what a violation does: certain violations require the court to enter the conviction.^[31] See The first-offender deferral (MCL 769.4a).

What people get wrong

"Probation ends after half the term if you behave." Under the general rule a probationer may be eligible for early discharge after half the term, but domestic violence offenses, violations of MCL 750.84 and stalking are excluded from it.^[4][5][19]

"Felony probation is 5 years." Since April 1, 2021 the general felony limit is 3 years, extendable twice by 1 year on specific findings; 5-year terms survive in the stalking and violent-felony exceptions.^[1][2][16]

"The protected person can cancel the no-contact condition." The condition is part of a court order, and it is the court that may amend the order.^[10]