Ten Mistakes That Make a Michigan Domestic Violence Case Worse

Several things a person can do after a Michigan domestic violence arrest carry legal consequences of their own, apart from the original charge: contact with the protected person in violation of a release condition, pressure on a witness, a missed court date, and destroying evidence. Each one has a specific legal consequence, and several are separate crimes.^[1][4][6][7]

This page lists ten of them. It is written for a person who has been charged, but it makes no assumption about what happened. A bond condition is a court order in its own right, and violating one can be punished as contempt of court.^[9]

1. Contacting the protected person

A release order in a domestic violence case may carry a condition that the defendant have no contact with a named person. A police officer may arrest, without a warrant, a defendant the officer has reasonable cause to believe is violating or has violated that condition, and the defendant is then brought before the court within one business day.^[1][10] The court may revoke the release order and declare bail forfeited.^[11] Violating a bond condition can also be punished as criminal contempt.^[9]

Two beliefs are worth correcting. The first is that the order begins on release from jail; a court may make it effective immediately, while the defendant is still in custody.^[12] The second is that the protected person's agreement changes the order. The benchbook for Michigan judges notes that the criminal court has no jurisdiction over the witnesses and cannot issue a mutual order.^[13] The condition is addressed to the defendant; the arrest statute, MCL 764.15e, does not mention the protected person's consent or invitation; and a release decision is modified by the court, on a party's motion or its own initiative.^[1][14][15] How to ask the court is described in How to modify or lift a no-contact order.

2. Asking anyone to change a statement or stay away from court

The penalties here are the highest on this page. MCL 750.122 prohibits giving or promising anything of value, or using threat or intimidation, to discourage a person from attending or testifying at an official proceeding, to influence testimony, or to encourage a person to avoid legal process, withhold testimony or testify falsely.^[2][3] It also prohibits willfully impeding or interfering with a witness's ability to attend, testify or provide information.^[16]

A violation is a felony punishable by up to 4 years 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 a crime or a threat to kill or injure a person or cause property damage.^[4] The statute applies whether or not a case is pending or a subpoena has been served, if the person knows or has reason to know the other person could be a witness.^[5] A separate statute covers bribing or intimidating a person to influence a statement to a police officer.^[17]

There is an evidence consequence as well. If a party wrongfully caused or encouraged a witness's unavailability, intending that result, the witness's out-of-court statement may be used against that party.^[18] A defendant's threat against a witness is generally admissible as conduct that can show consciousness of guilt.^[19] The full statute is explained in Witness tampering and intimidation.

3. Missing a court date

Ordinarily a court must wait 48 hours before issuing a bench warrant for a missed appearance. That rule does not apply if the case is for an assaultive crime or a domestic violence offense.^[6] The rule that rewards a defendant who voluntarily appears on a warrant also excludes domestic violence offenses.^[20] And the release order itself can be revoked and bail forfeited.^[11] Put every date in a calendar the day you receive it, confirm the courtroom the day before, and tell your lawyer immediately about any conflict.

4. Posting about the case

To be admitted, a text message, photo or recording needs only evidence sufficient to support a finding that it is what the party offering it claims.^[21] The same standard applies to a post or message that a party says the accused wrote. Posting about the protected person carries its own risk: MCL 750.411s makes it a crime to post a message, without the victim's consent, that is intended to cause conduct that would make the victim feel terrorized, frightened, intimidated, threatened, harassed or molested, where the other statutory conditions are met.^[22] The offense is a felony punishable by up to 2 years or a fine of up to $5,000, or both, and by up to 5 years or $10,000 if the posting violates a condition of pretrial release.^[23] See Text messages and social media evidence.

5. Deleting messages, photos or recordings

Knowingly and intentionally removing, altering, concealing, destroying or otherwise tampering with evidence to be offered in a present or future official proceeding is a felony punishable by up to 4 years or a fine of up to $5,000, or both.^[7] The same section makes it a felony to offer evidence at an official proceeding that the person recklessly disregards as false, which is a reason never to crop, edit or re-create a screenshot.^[24] The safer habit is to keep everything exactly as it is and give complete copies to your lawyer.

6. Explaining yourself to police, friends or the other side

The warnings police give before custodial questioning say that anything the person says can be used against him or her in court.^[25] Those warnings are required only when a person is subject to custodial interrogation.^[26] The Michigan standard for appointed counsel directs lawyers to advise clients not to discuss the circumstances of the arrest or the allegations with cellmates, law enforcement, family or anybody else without counsel present.^[27] A lawyer, by contrast, may not knowingly reveal a client's confidences or secrets except as the professional conduct rules permit.^[28] More in Should you talk to police?

7. Ignoring a firearm condition

A protective release order may include a condition that the defendant not purchase or possess a firearm, and the court must impose it when it orders electronic monitoring.^[29] When a concealed pistol license holder is charged with a listed misdemeanor, including domestic assault, the county clerk must suspend the license until final disposition.^[30] A licensee who fails to surrender a suspended license after notice commits a misdemeanor punishable by up to 93 days in jail or a fine of up to $500, or both.^[31] See Guns while a case is pending.

8. Treating the other bond conditions as optional

Release conditions may include no alcohol, substance testing, reporting, travel or residence restrictions, and a curfew.^[32] In People v Mysliwiec the Court of Appeals treated a bond condition prohibiting alcohol as a court order punishable by contempt.^[9] Knowingly and without authority removing, destroying or circumventing an electronic monitoring device worn as a condition of pretrial release is a separate felony punishable by up to 2 years or a fine of up to $4,000, or both.^[33] The conditions are described in Bond conditions in domestic violence cases.

9. Assuming the case ends if the witness does not want to go forward

In Michigan the prosecutor, not the complaining witness, has the authority to decide whether to prosecute and what charges to file.^[8] The Court of Appeals has held that a trial court erred when it dismissed domestic assault charges after the complaining witness would not testify.^[34] A statement to police can be admitted under MCL 768.27c without any showing that the person who made it is unavailable.^[35] The benchbook for Michigan judges describes how a prosecutor may seek to use a witness's earlier testimony or statements when the witness is unavailable.^[36] Encouraging a witness not to appear is the conduct described in mistake 2. See When the victim does not come to court.

10. Pleading guilty without knowing what follows a conviction

A first domestic assault is a misdemeanor punishable by up to 93 days in jail, a fine of up to $500, or both.^[37] A conviction also carries consequences that the penalty figure does not show:

• A person convicted of a misdemeanor involving domestic violence may not possess a firearm or ammunition in Michigan until 8 years after all fines are paid, all imprisonment is served, and all probation conditions are completed.^[38][39]
• Federal law separately bars firearm possession by anyone convicted of a misdemeanor crime of domestic violence, and that provision contains no time limit, apart from the narrow exceptions in the federal definition.^[40][41]
• A later domestic assault with one prior conviction is punishable by up to 1 year, and with two or more by up to 5 years as a felony.^[42][43]
• Domestic assault convictions are excluded from Michigan's automatic set-aside process, so clearing one takes an application.^[44]
• A noncitizen convicted of a crime of domestic violence at any time after admission is deportable under federal law.^[45] Michigan's plea rules do not require the judge to warn about immigration consequences.^[46]

Once a court accepts a plea, withdrawing it is not a matter of right.^[47] None of this means a plea is the wrong choice; it means the choice should be made with the full list in view. The decision factors are set out in Plea or trial: how to think about the decision and Should you take the deferral?

A note on personal protection orders

If a personal protection order (PPO) was also issued, conduct that violates it has a second consequence. An adult who violates a PPO is subject to immediate arrest and, if found guilty of criminal contempt, to up to 93 days in jail and a fine of up to $500.^[48] That penalty may be imposed in addition to any penalty for another criminal offense arising from the same conduct.^[49] See PPO vs. no-contact order vs. restraining order.