The First 48 Hours After a Domestic Violence Arrest in Michigan: A Checklist

The first two days after a Michigan domestic violence arrest are governed by a short list of rules: police cannot set bond themselves, a judge or magistrate decides release and its conditions, and a bond condition is a court order.^[1][10] Two things in this period are within the arrested person's control: keeping the release conditions and keeping the court date.

This checklist is written for the person who was arrested and for anyone helping that person. It is general information, in order, with the rule behind each step. It does not assume the allegation is true or false.

Before release: what the hold is and is not

A person arrested without a warrant for domestic assault may not be released on an interim bond set by the police or on his or her own recognizance by the arresting agency. The person is held until he or she can be arraigned or have an interim bond set by a judge or district court magistrate.^[1] The same rule applies to an arrest on a warrant for domestic assault where the listed relationship exists.^[2] Police also may not issue an appearance ticket for a domestic violence arrest.^[11]

Many websites describe a mandatory "20-hour hold." The current text of MCL 780.582a contains no hour figure at all.^[3] What limits the wait are two general rules: an arrested person must be taken before a court for arraignment without unnecessary delay, and a delay of more than 48 hours between a warrantless arrest and a judicial probable cause determination is presumptively unreasonable.^[12][13] The details are in How long you are held after a domestic violence arrest.

The checklist

1. Read the release order, every line. A judge or magistrate who releases a person subject to protective conditions must tell the person, on the record or in a writing that is personally delivered, what the specific conditions are and that a violation means arrest without a warrant, possible forfeiture or revocation of bond, new conditions, and contempt penalties.^[5] The order states the date the conditions take effect, the date the order will expire, and the conditions themselves.^[14] Keep the paper with you. If you did not receive a copy, ask the court clerk for one.
2. Have no contact with the protected person. A judge or magistrate who sets an interim bond must consider, and may impose, the condition that the released person "not have or attempt to have contact of any kind with the victim."^[4] A police officer may arrest, without a warrant, a defendant the officer has reasonable cause to believe is violating or has violated a release condition.^[15] Where the order uses those words, treat a call, a text, a message passed through a relative and a reply to an incoming message as covered; the exact reach depends on the wording of the order. The condition is the court's order, and a release decision is modified by the court, on a party's motion or the court's own initiative.^[10][16] See No-contact orders explained.
3. Arrange somewhere else to stay if the order covers your home. Release conditions may restrict a defendant's place of residence and may bar the defendant from entering specified premises.^[17] The rule's wording, "not enter specified premises or areas," contains no exception for collecting clothes, medication or a vehicle.^[17] If the address you share with the protected person is listed, ask the court, through a lawyer, before going back for anything. What the sources say about collecting property is in Getting your belongings during a no-contact order.
4. Check the order for a firearm condition and the date it takes effect. A protective release order may include a condition that the defendant not purchase or possess a firearm, and the court must impose that condition when it orders the defendant to wear an electronic monitoring device.^[18] A person with a concealed pistol license should also know that the county clerk must suspend the license, until final disposition, when notified that the holder is charged with a listed misdemeanor such as domestic assault.^[19] How to store or transfer firearms lawfully is a question for a lawyer; the rules are set out in Guns while a domestic violence case is pending.
5. Follow the other conditions exactly. A court may order a defendant not to use alcohol or illicitly use controlled substances, to take part in substance testing or monitoring, to follow a curfew or travel restriction, or to report to a court agency.^[17] In a case involving domestic violence the judge may also order an electronic monitoring device.^[20] A bond condition is a court order, and violating one can be punished as criminal contempt, whether or not the condition protects a named person.^[10]
6. Write down the next court date, time, courtroom and case number. Ordinarily a court waits 48 hours before issuing a bench warrant for a missed appearance, to let the defendant come in voluntarily. That rule does not apply when the case is for an assaultive crime or a domestic violence offense.^[6] A defendant who fails to comply with release conditions can have the release order revoked and the bail money or surety bond forfeited.^[21]
7. Preserve everything; delete nothing. Save text messages, call logs, photographs, voicemail, and the names and phone numbers of anyone who saw or heard the events. Photograph any injuries you have, with a date. Knowingly and intentionally removing, altering, concealing or destroying evidence to be offered in a present or future official proceeding is a felony under MCL 750.483a.^[22]
8. Do not talk about the facts with anyone but a lawyer. Anything a suspect says can be used against him or her in court.^[23] Miranda warnings are required only when a person is subject to custodial interrogation.^[24] The Michigan standard for appointed lawyers tells counsel to advise clients not to discuss the arrest or the allegations with cellmates, law enforcement, family or anybody else without counsel present.^[25] More on this in Should you talk to police?
9. Do not ask anyone to change a statement, stay away from court, or "drop the charges." MCL 750.122 prohibits offering anything of value, or using threat or intimidation, to discourage a person from attending or testifying, to influence testimony, or to encourage a person to avoid legal process or withhold testimony; it also prohibits willfully interfering with a witness's ability to attend or testify.^[7][8][26] A violation is a felony punishable by up to 4 years in prison or a fine of up to $5,000, or both, and by up to 15 years or $25,000 if the violation involves committing or attempting to commit a crime or a threat to kill or injure any person or to cause property damage.^[9] The statute applies even when no subpoena has been served, if the person knows or has reason to know the other person could be a witness.^[27] The charging decision belongs to the prosecutor in any event, not to the complaining witness.^[28]
10. Settle the question of a lawyer before the next hearing. At a district court arraignment the defendant must be told of the right to the assistance of an attorney at all court proceedings, including arraignment, and of the right to an appointed attorney when eligible.^[29] A defendant is responsible for applying for appointed counsel and for showing that he or she qualifies.^[30] Being able to post bond does not make a person ineligible.^[31] Appointed counsel is not necessarily free of charge: a court may require a defendant who can pay part of the cost to contribute, and may impose the expenses of providing legal assistance as a cost on a defendant who pleads guilty or is found guilty.^[32][33] Appointed and retained counsel are compared in Court-appointed or retained counsel.
11. Check whether you were also served with a personal protection order (PPO). A PPO is a separate civil order. It is enforceable as soon as a judge signs it, and a respondent has 14 days after service or actual notice to file a motion to modify or terminate an ex parte PPO.^[34][35] See Served with a PPO: what to do.

What the first court appearance decides

If you were released on an interim bond, the arraignment is still ahead of you. At arraignment the court must order that the defendant be held in custody, released on personal recognizance or an unsecured appearance bond, or released conditionally with or without money bail.^[36] The conditions set at that hearing can differ from those on the interim bond; MCR 6.106(D) lists the conditions a court may attach.^[17] In choosing them the court considers, among other things, the defendant's prior record, record of appearing in court, the seriousness of the offense, the presence or absence of threats, and community and family ties.^[37]

On credible evidence of acts or threats of violence or intimidation by the defendant, or at the defendant's direction, against the victim or the victim's immediate family, the prosecuting attorney may move to revoke bond.^[38] Preparation for the hearing itself is covered in How to prepare for your arraignment.

What people commonly get wrong in the first two days

• "The order does not count until release." A court may make a no-contact condition effective immediately and while the defendant is still in custody.^[39] Where the court has done that, a call or letter from jail to the protected person is contact made while the condition is in force.
• "We both agreed to talk." The benchbook for Michigan judges notes that the criminal court has no jurisdiction over the witnesses and cannot issue a mutual order; the condition is addressed to the defendant.^[40] The arrest statute, MCL 764.15e, refers to a defendant who "is violating or has violated a condition of release" and does not mention the protected person's consent or invitation.^[15][41]
• "The other person is going to drop it, so none of this matters." In Michigan the prosecutor, not the complaining witness, decides whether to prosecute and what to charge.^[28] See Can the victim drop the charges?
• "A missed hearing can be fixed the next day." The 48-hour grace period before a bench warrant does not apply in a domestic violence case.^[6]

Once the first two days have passed, the next guides to read are Ten mistakes that make a case worse and the misdemeanor case timeline.