GPS Tethers and Alcohol Monitoring on Bond in Michigan Domestic Violence Cases

A Michigan judge can order a person charged with domestic violence to wear a GPS tether or an alcohol monitor before trial. The authority is MCL 765.6b(6): if a defendant "charged with a crime involving domestic violence, or any other assaultive crime" is released on protective conditions, the judge or magistrate "may order the defendant to wear an electronic monitoring device as a condition of release."^[1] The defendant is released only on agreeing to pay the cost of the device and monitoring, or to perform community service work instead, and the order brings a mandatory condition against purchasing or possessing firearms.^[1][3]

This page covers when monitoring can be ordered, what the statute counts as a monitoring device, the cost, the firearm rule, how victim notification works, and the separate rules on alcohol and drug testing.

When can a court order electronic monitoring?

Three points come from the statute's text.

• The charge. The defendant is charged with a crime involving domestic violence or another assaultive crime.^[1]
• The release. The defendant is being released subject to protective conditions under MCL 765.6b, which requires the judge to make a finding of the need for protective conditions.^[4]
• The purpose. In deciding whether to order a device, the court "shall consider the likelihood that the defendant's participation in electronic monitoring will deter the defendant from seeking to kill, physically injure, stalk, or otherwise threaten the victim prior to trial."^[1]

The word is "may." Monitoring is not automatic in a domestic violence case. The statute also says it does not limit a judge's authority to order electronic monitoring under other statutes or court rules.^[5]

The statute has a name. The 2008 act that amended MCL 765.6b, effective July 10, 2008, is known and cited as "Mary's Law."^[6] The benchbook's advisory committee separately advises judges in domestic violence cases to assess whether circumstances indicate the defendant is likely to kill or seriously injure an intimate partner.^[7]

What counts as an "electronic monitoring device"?

The statute defines the term to include "any electronic device or instrument that is used to track the location of an individual or to monitor an individual's blood alcohol content," but not "any technology that is implanted or violates the corporeal body of the individual."^[2]

Device	Covered by MCL 765.6b(6)?
GPS ankle tether that tracks location	Yes: a device used to track the location of an individual.[2]
Alcohol-monitoring tether	Yes: a device used to monitor an individual's blood alcohol content.[2]
Anything implanted in the body	No: technology that is implanted or violates the corporeal body is excluded.[2]

The device must also "provide reliable notification of removal or tampering."^[1]

Who pays?

Under the statute, the defendant, with one alternative. A defendant described in the monitoring subsection "shall only be released if he or she agrees to pay the cost of the device and any monitoring as a condition of release or to perform community service work in lieu of paying that cost."^[1]

The statute names no fee, and no source reviewed for this guide sets one. The statute's alternative to paying is an agreement to perform community service work, which a defendant who cannot afford the cost can raise with the court.^[1]

The firearm rule that comes with a tether

Ordinarily a firearm condition on bond is optional: the order "may impose a condition that the defendant not purchase or possess a firearm." But if the court orders the defendant to wear an electronic monitoring device under subsection (6), "the court shall also impose a condition that the defendant not purchase or possess a firearm."^[3]

Because the definition includes alcohol monitors, an alcohol tether ordered under that subsection carries the same mandatory firearm condition as a GPS tether.^[2][3] What that means for guns already in the home, a concealed pistol license and new purchases is covered in Firearms while the case is pending.

How victim notification works

If you are in danger, call 911. The National Domestic Violence Hotline is free, confidential and available 24/7 at 1-800-799-SAFE (7233), or by texting START to 88788.^[8]

A GPS order can run in two directions. The basic order tracks the defendant. The court may add a second piece: with the informed consent of the victim, the court may order the defendant to provide the victim with an electronic receptor device that receives the GPS information from the defendant's tether and notifies the victim if the defendant is within a proximity set by the judge or magistrate in consultation with the victim.^[1]

The statute gives the victim several protections.

• A phone contact. The victim must be furnished with a telephone contact with the local law enforcement agency to request immediate assistance if the defendant is located within that proximity.^[1]
• Exclusion areas. The victim may give the court a list of areas from which he or she would like the defendant excluded. The court must consider the request and determine which areas the defendant is barred from accessing.^[1]
• Reporting. The court must instruct the entity monitoring the defendant's position to notify the proper authorities if the defendant violates the order.^[1]
• The right to say no, or to stop. The victim may ask the court to terminate his or her participation at any time, and the court may not impose sanctions on the victim for refusing to participate.^[1]

What "informed consent" means

Before consenting, the victim must be given information about all of the following.^[9]

1. The right to refuse to participate, and the process for asking the court to end participation later.^[9]
2. How the monitoring technology functions, its risks and limitations, and the extent to which the system will track and record the victim's own location and movements.^[9]
3. The boundaries imposed on the defendant during the monitoring program.^[9]
4. The sanctions the court may impose on the defendant for violating the order.^[9]
5. The procedure the victim is to follow if the defendant violates the order or the equipment fails to operate properly.^[9]
6. Support services available to help the victim develop a safety plan for a violation or an equipment failure.^[9]
7. Community services that can help with shelter, counseling, education, child care and legal representation.^[9]
8. The nonconfidential nature of the victim's communications with the court about electronic monitoring.^[9]

Items 2 and 8 deserve attention. The statute contemplates that the system may track and record the victim's own location and movements, and it describes the victim's communications with the court about monitoring as nonconfidential.^[9] A victim deciding whether to take part can ask the prosecutor's office or an advocate to go through each item. Other safety tools, including address confidentiality, are in Address confidentiality and safety tools.

Alcohol and drug conditions without a tether

Monitoring does not always mean a device. The pretrial release rule separately allows a court to order that the defendant "not use alcohol or illicitly use any controlled substance" and that the defendant "participate in a substance abuse testing or monitoring program."^[10] How testing is carried out under those conditions is a matter of local practice.

Among the factors a court weighs in setting release conditions is the defendant's history of substance abuse.^[11] A no-alcohol condition is enforceable like any other: in People v Mysliwiec the Court of Appeals found that a bond condition barring the use of alcohol was a court order punishable by contempt.^[12]

One thing a court is advised not to order before trial is a batterer intervention program. The benchbook committee's reasoning is that such programs typically require participants to admit responsibility, which conflicts with the right against self-incrimination.^[13] How alcohol bears on the charge itself is a separate subject, covered in Intoxication and domestic violence charges.

Violations and tampering

A defendant released on protective conditions is told that a violation means arrest without a warrant and possible forfeiture or revocation of bail, "in addition to the penalty provided under section 3f of chapter XI" and any contempt penalties.^[4] That reference is to MCL 771.3f, which makes it a felony to knowingly and without authority remove, destroy or circumvent an electronic monitoring device, or interfere with its signal or data, when the device is worn as a condition of bond or other pretrial release. The penalty is imprisonment for not more than 2 years or a fine of not more than $4,000, or both.^[14]

Asking someone else to do it is covered as well. The statute has two exceptions: the device's owner or agent performing proper maintenance and repairs, and a person who removes the device at a physician's direction due to an immediate medical necessity.^[14]

Other violations are handled as bond violations. A peace officer may arrest without a warrant a defendant reasonably believed to be violating a condition imposed under MCL 765.6b, such as an exclusion area, and for a failure to comply with release conditions the court may revoke release and forfeit bail.^[15][16] See What happens if a no-contact order is violated.

Getting a monitor removed or changed

A monitoring condition is part of the release decision, and a court may modify a release decision on a party's motion or its own initiative, on finding a substantial reason.^[17] Practical problems, such as a work schedule that crosses an exclusion area or a device that malfunctions, are the kind of thing to bring to the court through a lawyer rather than work around. The process is in How to change or lift a no-contact order.

After a conviction, electronic monitoring can also be ordered as a condition of probation.^[18] See Probation conditions in domestic violence cases.

What people get wrong

"An alcohol tether is not electronic monitoring." The statutory definition includes a device that monitors blood alcohol content.^[2]

"The victim always gets alerts." Only with informed consent and a court order, and the victim may withdraw.^[1]

"Someone else pays for the tether." Under MCL 765.6b(6) the defendant is released only on agreeing to pay the cost of the device and monitoring or to perform community service work instead.^[1]

"A tether does not affect my guns." A firearm condition is mandatory when a device is ordered under MCL 765.6b(6).^[3]