Probation Violations in Michigan Domestic Violence Cases

A probation violation in a Michigan domestic violence case is handled at a hearing before the sentencing court, and the possible results run from continued probation to revocation and a sentence up to the original maximum.^[4][7] The statutory limits on jail for "technical" violations do not protect domestic violence probationers: the graduated jail limits do not apply to a person on probation for a domestic violence offense, stalking or aggravated stalking.^[2]

This page explains the two kinds of violation, how a case starts, what happens at the hearing, what the court can do, and how a violation works on a deferral.

Technical and non-technical violations

Michigan law sorts violations into two groups. A technical probation violation is a violation of the terms of the probation order that is not one of four listed exceptions. Missing or failing a drug test is technical by the terms of the statute.^[9]

The four exceptions, which are never technical, are:^[3]

1. A violation of a court order requiring that the probationer have no contact with a named individual.^[3]
2. A new violation of law, whether or not it is charged.^[3]
3. Drinking alcohol while on probation for felony drunk driving.^[3]
4. Absconding, which means intentionally failing to report to the supervising agent, or to advise the agent of one's whereabouts, for a continuous period of not less than 60 days.^[3][10]

The first exception matters most in domestic cases. It applies when the order names the person. In People v Smith (2024), the Court of Appeals held that a no-contact violation is non-technical "only when the no-contact order pertains to a named individual," and that violating a condition barring contact with a broad class of people was a technical violation.^[11] A no-contact condition that names the protected person therefore falls outside the technical category.^[3]

Why the usual jail limits do not apply

For most probationers, MCL 771.4b(1) limits jail for technical violations:^[1][12]

Type of probation	First	Second	Third	Fourth or later
Misdemeanor probation[1]	Not more than 5 days	Not more than 10 days	Not more than 15 days	Up to the remaining eligible jail sentence
Felony probation[12]	Not more than 15 days	Not more than 30 days	Not more than 45 days	Jail or prison up to the remaining eligible sentence

Subsection (6) of the same statute removes that table for domestic cases: "Subsection (1) does not apply to a probationer who is on probation for a domestic violence violation of section 81 or 81a, an offense involving domestic violence as that term is defined in" MCL 400.1501, or a violation of the stalking or aggravated stalking statutes.^[2]

The result is that a person on probation for domestic assault who misses a counseling session or fails a drug test has committed a technical violation by definition, but is not covered by the 5, 10 and 15 day limits.^[9][2]

A second general protection is that a court shall not revoke probation for a technical violation unless the probationer has already been sanctioned for 3 or more technical violations and commits a new one. The statute makes that rule "subject to the exception in subsection (6)."^[13] How courts apply the revocation rule to domestic violence probationers was not addressed in the sources used for this guide, so this page quotes the two provisions and goes no further.^[13]

How a violation case starts

Summons or warrant. For a technical violation there is a rebuttable presumption that the court issues a summons or an order to show cause and not an arrest warrant. The presumption gives way if the court states on the record a specific reason to suspect that the probationer is an immediate danger to self, another person or the public, has left court-ordered inpatient treatment, or has already failed to appear on a summons.^[14] For a non-technical violation, the court may issue a bench warrant or a summons upon finding probable cause.^[15]

Arrest by police. A peace officer may arrest without a warrant when the officer has reasonable cause to believe the person has violated 1 or more conditions of a probation order.^[16] A protective condition in a probation order is entered into the Law Enforcement Information Network, so an officer who checks can see it.^[17]

Written acknowledgment. In place of a violation proceeding, the court may allow a probationer to acknowledge a technical violation in writing without a hearing.^[18][19] The court will not revoke probation or order incarceration as a result of the acknowledgment, but it may continue, modify or extend probation, and a later court may count the acknowledgment as a prior technical violation.^[19]

What happens at the hearing

1. Arraignment on the violation. The court must inform the probationer whether the alleged violation is charged as technical or non-technical, and the maximum possible jail or prison sentence.^[20] It must also advise the probationer of the right to contest the charge at a hearing and of the entitlement to a lawyer's assistance, with a lawyer appointed at public expense if the probationer wants one and is financially unable to retain one.^[21]
2. Written charges. The probationer is entitled to a written copy of the charges constituting the claim that he or she violated probation.^[4]
3. The hearing. The probationer is entitled to a probation revocation hearing.^[4] Hearings on revocation "must be summary and informal and not subject to the rules of evidence or of pleadings applicable in criminal trials."^[5] Under the court rule, the evidence against the probationer must be disclosed, and the probationer has the right to be present, to present evidence, and to examine and cross-examine witnesses.^[6]
4. Standard of proof. The state has the burden of proving a violation by a preponderance of the evidence.^[6] At a criminal trial, by comparison, guilt must be proved beyond a reasonable doubt.^[22]
5. Decision. If the court finds a violation, or the probationer pleads guilty to one, the court may continue probation, modify the conditions, extend the probation period, or revoke probation and impose a sentence of incarceration.^[23]

A person detained on a technical violation must be brought to a hearing as soon as possible.^[24] The statute's fallback, return to community supervision if the hearing is not held within the applicable jail limit, is tied to the subsection (1) limits that do not apply to domestic violence probationers.^[24][2] The court rule sets an outer limit that is not confined to technical violations: the hearing of a probationer held in custody must be held within the permissible jail sentence for the violation, "but in no event longer than 14 days after the arrest," or the court must order the probationer released from that custody pending the hearing.^[25]

Because the rules of evidence do not apply, a violation hearing is less formal than a trial. Bring any documents that bear on the allegation, such as attendance records from a program, receipts for payments or proof of a medical appointment. The right to a lawyer in criminal cases generally is covered in Right to a lawyer.

What can the court do?

The court has a range of choices. It may amend the probation order in form or substance at any time, which allows it to add or tighten conditions.^[26] It may revoke probation. If a probation order is revoked, the court may sentence the probationer "in the same manner and to the same penalty as the court might have done if the probation order had never been made."^[7] For a first-offense domestic assault that ceiling is 93 days; for a third offense it is 5 years.^[27][28]

The Legislature has stated a policy that revocation and incarceration "should be imposed only for repeated technical violations, for new criminal behavior," as otherwise allowed in the technical-violation statute, or upon request of the probationer.^[5]

Two limits apply across the board:

• Money. Before revoking probation for failure to comply with an order to pay money, the court must find that the defendant is able to comply without manifest hardship and has not made a good-faith effort to comply.^[29]
• Time. The court's jurisdiction to revoke probation and impose a prison sentence is limited to the probationary period; once that period expires, the court loses that jurisdiction.^[30]

The sentencing limits themselves are in Jail and prison: what sentences are possible.

Violations on a 769.4a deferral

A deferral adds a layer, because what is at stake is the conviction itself. Upon a violation of a term or condition of deferral probation, the court may enter an adjudication of guilt and proceed to sentencing.^[31]

For three violations the statute says "shall." The court must enter an adjudication of guilt if the accused commits an assaultive crime during probation, violates a court order to receive counseling regarding violent behavior, or violates a court order to have no contact with a named individual.^[8] Once that happens, the dismissal the deferral offered is gone. See The first-offender deferral (MCL 769.4a).

Youthful trainee status works similarly. The court may at its discretion revoke the status any time before final release, and it must revoke for certain new convictions, including felonious assault and assault under MCL 750.84.^[32] See HYTA and domestic violence.

Contact with the protected person

A probation no-contact condition binds the probationer. It is part of an order that the court may amend, and it stays in effect until the court does.^[26][33] An invitation from the protected person does not change the order.

A person who wants contact, on either side of the order, should ask the court to modify the condition before any contact occurs. The process is described in How to modify or lift a no-contact order and When the protected person wants contact. Violations of the bond version of the order, before sentencing, are covered in Violating a no-contact order.

Conduct that violates probation can also be a new crime or a violation of a personal protection order, each with its own consequences; see PPO violation penalties.

What people get wrong

"A first violation is 5 days at most." That limit does not apply to domestic violence, stalking or aggravated stalking probation.^[2]

"Contact the protected person agreed to is only a technical violation." Violating an order to have no contact with a named individual is excluded from the definition of a technical violation.^[3]

"The prosecutor has to prove a violation like a new charge." A revocation hearing is summary and informal and is not subject to the rules of evidence or pleading that apply at a criminal trial, and the standard is a preponderance of the evidence.^[5][6]

"On a deferral, a slip only means a warning." For an assaultive crime, a counseling-order violation or a no-contact violation, the court shall enter the adjudication of guilt.^[8]