The Michigan Domestic Violence Deferral (MCL 769.4a), Explained

MCL 769.4a is the Michigan statute that lets a court handle a first domestic assault case without entering a conviction. After a guilty plea or a finding of guilt, the court may, "without entering a judgment of guilt," defer further proceedings and place the accused on probation.^[1] If the person completes probation, the court discharges the person and dismisses the case.^[2]

The deferral is narrower, and leaves more behind, than its reputation suggests. This page goes through the statute subsection by subsection: who qualifies, who has to agree, what the probation involves, what ends it early, and what a dismissed case still counts for.

Which charges qualify?

Only two. The person has to plead guilty to, or be found guilty of, a violation of MCL 750.81 (assault or assault and battery) or MCL 750.81a (aggravated assault).^[1] The deferral is not available for felonious assault, strangulation, stalking or other charges.^[1]

The assault also has to be a domestic one. The victim has to be the offender's spouse or former spouse, a person who has had a child in common with the offender, a person who has or has had a dating relationship with the offender, or a person residing or having resided in the same household.^[1] Those relationship categories are explained in Who is covered by Michigan's domestic relationship definition, and the two offenses in Domestic assault under MCL 750.81 and Aggravated domestic assault.

Who is eligible?

The statute applies to an individual "who has not been convicted previously of an assaultive crime."^[1] For this section, "assaultive crime" has a broad meaning. It covers the offenses listed in MCL 770.9a, any violation of the assault chapter of the Penal Code (MCL 750.81 to 750.90g), and a substantially corresponding law of another state or a local ordinance.^[5] A prior simple assault conviction under MCL 750.81, or under a corresponding city ordinance, therefore disqualifies a person.^[5]

A person may receive only 1 discharge and dismissal under the section.^[2] To enforce both limits, the court must contact the Department of State Police before deferring and determine whether the accused has previously been convicted of an assaultive crime or has previously had proceedings deferred under the section.^[1]

Requirement	What the statute says
Offense	A violation of MCL 750.81 or 750.81a[1]
Relationship	Spouse or former spouse, child in common, current or former dating relationship, or current or former household member[1]
Record	No previous conviction of an assaultive crime, as the section defines that term[1][5]
Prior use	Only 1 discharge and dismissal under the section for any individual[2]
Consent	The accused and the prosecuting attorney, in consultation with the victim[1]
How guilt was established	A guilty plea or a finding of guilt[1]

Who has to agree?

Three participants matter. The accused has to consent. The prosecuting attorney has to consent, and does so "in consultation with the victim."^[1] And the court "may" defer, which makes the decision discretionary with the judge.^[1]

A common belief is that the complaining witness decides whether the defendant gets a deferral. The statute gives the victim a consultation, and it gives the consent to the prosecutor.^[1] The victim's wider rights to be consulted during plea discussions are covered in Crime victim rights in Michigan domestic violence cases.

What does deferral probation involve?

An order of probation under the section may include any condition of probation authorized by MCL 771.3, the general probation-conditions statute.^[6] The statute names several in particular:

• Counseling. The order may require the accused to participate in a mandatory counseling program, and the court may order the accused to pay the reasonable costs of that program.^[6] The state standards for programs built for domestic violence cases are described in Batterer intervention programs.
• Drug treatment court. The court may order the accused to participate in a drug treatment court.^[6] A person on 769.4a probation who is otherwise eligible for admission may also be admitted to a mental health court or, if a veteran, a veterans treatment court.^[7]
• Jail. The court may order imprisonment for not more than 12 months, at times or intervals within the probation period, but not for longer than the maximum term authorized for the offense when that maximum is less than 12 months.^[6]
• Protective conditions. The general probation statute allows conditions reasonably necessary for the protection of 1 or more named persons, which is the basis for a no-contact condition.^[8]

Money is owed as well. When entry of judgment is deferred in district court, the court must require the individual to pay the minimum state costs.^[9] The crime victim rights assessment applies to a case resolved by a deferred judgment, and so does the requirement to order restitution.^[10][11] The amounts are set out in Fines, costs and fees, and the conditions themselves in Probation in a domestic violence case.

What ends a deferral early?

The statute has two rules, one permissive and one mandatory.

The permissive rule: upon a violation of a term or condition of probation, the court may enter an adjudication of guilt and proceed to sentencing.^[12]

The mandatory rule: the court shall enter an adjudication of guilt and proceed to sentencing if any of three things happens.^[3]

1. The accused commits an assaultive crime during the period of probation.^[3]
2. The accused violates a court order to receive counseling regarding his or her violent behavior.^[3]
3. The accused violates a court order to have no contact with a named individual.^[3]

The third item is the one that surprises people. The text contains no exception for contact that the named person started or welcomed.^[3] A person on a deferral who wants contact with the protected person has to ask the court to change the order first; see How to modify or lift a no-contact order. What a violation hearing looks like is covered in Probation violations.

What happens when probation is completed?

Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings.^[2] That discharge and dismissal is "without adjudication of guilt" and is not a conviction for purposes of the section or "for purposes of disqualifications or disabilities imposed by law upon conviction of a crime."^[2]

What a dismissed deferral still counts for

The same sentence of the statute that says the dismissal is not a conviction goes on to say that "it is a prior conviction" in a prosecution under MCL 750.81(4) and (5) and 750.81a(3), the repeat-offense provisions.^[2] A person who completes a deferral and is later charged with domestic assault can therefore be prosecuted under the second-offense provision, a misdemeanor punishable by up to 1 year, in place of the 93-day first offense.^[2][13] See Second and third offenses.

The record does not disappear either:

• All court proceedings under the section are open to the public, but the record of proceedings is closed to public inspection during the period of deferral.^[14]
• Unless a judgment of guilt is entered, the State Police retain a nonpublic record of the arrest, court proceedings and disposition.^[4]
• That record is open to courts, law enforcement, the Department of Corrections and prosecuting attorneys for their duties and their own hiring, and to the Department of Health and Human Services for enforcing child protection and vulnerable adult protection laws.^[15][16]
• A person whose case is dismissed after a deferral is not treated as having been found not guilty and is not entitled to destruction of the fingerprint card under MCL 28.243.^[17]
• A deferred and dismissed case is considered a misdemeanor conviction when counting a person's convictions for purposes of setting aside other convictions.^[18]

Each of these, along with the firearm and immigration questions, is taken up in Does a 769.4a deferral count as a conviction?

What people get wrong about the deferral

"It wipes the slate clean." A completed deferral is not a conviction for most purposes, but it is a prior conviction for repeat-offense domestic assault charges, and the State Police keep a nonpublic record that courts, police, prosecutors and child protection workers can see.^[2][4][16]

"It is available for any assault charge." It is limited to MCL 750.81 and 750.81a, to the four domestic relationships, and to people with no prior assaultive-crime conviction.^[1]

"A slip on probation only means a warning." For three kinds of violation the statute removes the judge's choice and directs that the conviction be entered.^[3]

"It is the only route to a dismissal." For defendants who were at least 18 and under 26 at the time of the offense, the Holmes Youthful Trainee Act is a separate statute with different rules.^[19] The two are compared in HYTA and domestic violence. Whether to accept a deferral at all is a separate question, addressed in Should you take the deferral?