Restitution in Michigan Domestic Violence Cases: Medical Bills, Lost Income and Property Damage

Restitution is money a court orders a convicted defendant to pay to cover a victim's losses from the offense. In Michigan it is mandatory: when sentencing for a misdemeanor or a felony, the court must order full restitution to any victim of the defendant's course of conduct that gives rise to the conviction.^[1][2] Victims also have a state constitutional right to restitution.^[6]

If you are in danger, call 911. The National Domestic Violence Hotline is free, confidential and open 24/7: call 1-800-799-SAFE (7233) or text START to 88788.^[7] Michigan's statewide VOICES4 hotline takes calls and texts at 855-864-2374.^[8][9]

This page explains which losses count, how the amount is set, how payment works, and what happens when it is not paid. It is written for both the person who is owed restitution and the person who owes it.

Which law applies?

Three statutes say much the same thing in different settings.

Statute	Where it applies
MCL 780.826	Misdemeanors, defined for this section as a violation of a state law or a local ordinance punishable by imprisonment for not more than 1 year.[10] A first-offense domestic assault, punishable by up to 93 days, is within that definition.[11]
MCL 780.766	Felonies under the felony article of the Crime Victim's Rights Act.[2]
MCL 769.1a	The general restitution statute, covering a felony, misdemeanor or ordinance violation.[12]

The district court rule on sentencing repeats the duty: the court must order the dollar amount of restitution the defendant has to pay to make full restitution to any victim of the course of conduct that gives rise to the conviction.^[4]

Deferrals and other outcomes short of a conviction

Restitution is not limited to cases that end in a conviction on the record. For an offense resolved by assignment to youthful trainee status, by a delayed sentence or deferred judgment of guilt, or in another way that is not an acquittal or unconditional dismissal, the court must order the same restitution.^[1] That covers the first-offender deferral described in the domestic violence deferral explained and the outcomes in delayed sentence and other outcomes.

Who can receive restitution?

For the misdemeanor section, a "victim" is an individual who suffers direct or threatened physical, financial or emotional harm as a result of the commission of the offense.^[10] The order runs to "any victim of the defendant's course of conduct," or to the victim's estate.^[1]

Others who paid for the victim's losses are also covered. The court must order restitution to the crime victim services commission or to any person or entity, such as an insurer, that has compensated the victim for a loss, to the extent of the compensation paid. It must also order restitution for the costs of services provided to the victim as a result of the offense, including shelter, food, clothing and transportation.^[13] The order has to require that all restitution to the victim be paid before restitution to anyone else.^[13]

What losses does restitution cover?

Physical or psychological injury

If the offense results in physical or psychological injury to a victim, the order must require the defendant to do one or more of the following, as applicable:^[3]

• Pay the reasonably determined cost of medical and related professional services and devices, both those actually incurred and those reasonably expected to be incurred, relating to physical and psychological care.^[3]
• Pay the reasonably determined cost of physical and occupational therapy and rehabilitation.^[3]
• Reimburse the victim for after-tax income loss suffered as a result of the offense.^[3]
• Pay the reasonably determined cost of psychological and medical treatment for members of the victim's family as a result of the offense.^[3]
• Pay the reasonably determined costs of homemaking and child care expenses.^[3]
• Pay income actually lost by a spouse, parent, sibling, child or grandparent of the victim who left employment, temporarily or permanently, to care for the victim because of the injury.^[3]

Counseling is therefore included in the same way as an emergency room bill, and future treatment that is reasonably expected can be counted along with bills already received.^[3]

Property

If the offense results in damage to, or loss or destruction of, a victim's property, the order must require the defendant to return the property or, if that is impossible, impractical or inadequate, to pay the greater of its fair market value on the date of the damage or its fair market value on the date of sentencing, less the value of anything returned. If fair market value cannot be determined or is impractical to ascertain, replacement value is used.^[14] A broken phone, a damaged door or a damaged vehicle would be examples; the separate criminal charge for damage is covered in property damage in a domestic dispute.

Serious injury

If a crime resulting in bodily injury also results in death or serious impairment of a body function, the court may order up to 3 times the amount of restitution otherwise allowed. The statute's examples of serious impairment include loss of a limb or its use, serious visible disfigurement, measurable brain damage or mental impairment, and a skull fracture or other serious bone fracture.^[15]

What is not on the list

The statutory items are economic losses.^[3][14] The sections do not list payment for pain and suffering, and the sources reviewed for this library do not include a court decision on whether it can be included. The statute does refer to a separate civil proceeding: any amount paid under a restitution order is set off against compensatory damages the victim later recovers.^[16] Fines, costs and assessments are separate from restitution and are explained in fines, costs and fees.

How is the amount decided?

If the defendant disputes the amount or the type of restitution, the court resolves the dispute by a preponderance of the evidence, and the burden of demonstrating the amount of the loss is on the prosecuting attorney.^[4]

The victim's impact statement is one of the ways the information reaches the judge: the statute says a statement may include an explanation of economic loss or property damage and an opinion on the need for and extent of restitution.^[17] See victim impact statements.

Practical steps for a person seeking restitution: keep every bill, receipt, repair estimate, insurance statement and pay stub; write down missed work days; and give copies to the prosecutor's office well before the plea or sentencing date. Practical steps for a person facing a restitution claim: ask for the supporting documents through defense counsel and check that each item is documented and tied to the course of conduct behind the conviction.

When and how is it paid?

Unless the court provides otherwise, restitution is due immediately. The court may require payment within a specified period or in specified installments.^[18] If the victim consents, the order may require restitution in services instead of money.^[19]

When the defendant is placed on probation, restitution is a condition of that probation.^[20][21] The court must order an employed defendant to make regularly scheduled restitution payments, and if the defendant misses 2 or more of them the court must order a wage assignment.^[20] See domestic violence probation conditions.

If the defendant cannot pay as ordered

A defendant who is required to pay restitution and is not in willful default may at any time petition the sentencing judge to modify the method of payment. The court may do so if payment under the order will impose a manifest hardship on the defendant or the defendant's immediate family and if modifying the method of payment will not impose a manifest hardship on the victim.^[18] That changes how the amount is paid; the statute speaks of the "method of payment," not of reducing what is owed.^[18]

What happens if restitution is not paid?

The court may revoke probation if the defendant fails to comply with the order and has not made a good faith effort to comply. In deciding, the court must consider the defendant's employment status, earning ability and financial resources, the willfulness of the failure to pay, and any other special circumstances bearing on ability to pay.^[20]

There is a firm limit. A defendant may not be imprisoned, jailed or incarcerated for a violation of probation or otherwise for failure to pay restitution unless the court determines that the defendant has the resources to pay the ordered restitution and has not made a good faith effort to do so.^[20] The court rules contain a matching requirement: before jailing a person or revoking probation for failure to pay, the court must find that the person is able to comply without manifest hardship and has not made a good-faith effort.^[22] See probation violations.

Collection outside probation

The end of probation does not end the debt. A restitution order remains effective until it is satisfied in full. It is a judgment and lien against all property of the defendant for the amount specified, the lien may be recorded, and the order may be enforced by the prosecuting attorney, a victim, a victim's estate or any other person named in the order in the same manner as a judgment in a civil action or a lien.^[5] The court may not charge the victim or the prosecuting attorney a fee for enforcing it.^[5]

If a person entitled to restitution cannot be located or does not claim it within 2 years, the money is deposited in the crime victim's rights fund, but the person may still claim it at any time by applying to the court that ordered and collected it.^[19] A victim who moves should keep the court and the prosecutor's office informed of a current mailing address; that address is exempt from disclosure under the Freedom of Information Act.^[23]

Restitution and other proceedings

• Civil lawsuits. Restitution paid is set off against any amount the victim later recovers as compensatory damages in a civil proceeding.^[16]
• Crime victim compensation. Restitution paid reduces a later award from the crime victim services commission, and the commission is itself repaid through restitution for what it has paid the victim.^[16][13]
• Setting aside the conviction. A set-aside does not relieve any obligation to pay restitution owed to the victim, and it does not affect the court's authority to enforce a restitution order.^[24] See expunging a domestic violence conviction.
• Juvenile cases. A juvenile must be ordered to make full restitution, and a parent may be ordered to pay an unpaid portion after notice and an opportunity to be heard.^[25] See when the accused is under 18.

What people get wrong

"Restitution is up to the judge." Ordering it is not discretionary; the statutes say the court "shall order" full restitution.^[1][2] The judge decides the amount when it is disputed.^[4]

"The defendant will be billed for the police response." The statute that allows reimbursement of emergency response costs applies only to the offenses it lists, and that list does not include domestic assault under MCL 750.81 or 750.81a. It does include criminal contempt for violating a personal protection order.^[26]

"If the victim does not want restitution, none is ordered." Restitution also runs to insurers and others who paid the victim's losses.^[13] A victim's views on restitution can be given to the prosecutor and the court.^[17] The wider set of rights is in crime victims' rights in Michigan.