Second and Third Offense Domestic Violence in Michigan

In Michigan, a second domestic assault is a misdemeanor punishable by up to 1 year in jail, a fine of up to $1,000, or both, and a third is a felony punishable by up to 5 years in prison, a fine of up to $5,000, or both.^[1][2] The increase depends on "previous convictions," and the statute defines that term broadly: it has no look-back period, and it reaches ordinance convictions, out-of-state convictions, and cases that ended in a deferral and dismissal.^[4][5][6]

This page covers the enhancement ladder for simple and aggravated domestic assault, what counts as a prior, how the prosecutor has to charge and prove priors, and what a felony third offense means at sentencing.

The enhancement ladder

Current charge	Previous qualifying convictions	Subsection	Class	Maximum
Domestic assault, or assault of a known-pregnant individual[10][11]	None	MCL 750.81(2) or (3)	Misdemeanor	93 days, $500, or both
Domestic assault, or assault of a known-pregnant individual[1]	One	MCL 750.81(4)	Misdemeanor	1 year, $1,000, or both
Domestic assault, or assault of a known-pregnant individual[2]	Two or more	MCL 750.81(5)	Felony	5 years, $5,000, or both
Aggravated domestic assault[12]	None	MCL 750.81a(2)	Misdemeanor	1 year, $1,000, or both
Aggravated domestic assault[13]	One or more	MCL 750.81a(3)	Felony	5 years, $5,000, or both

Note the aggravated rows. For aggravated domestic assault a single prior is enough to make the new offense a felony; there is no intermediate 1-year step.^[13] See Aggravated domestic assault: MCL 750.81a.

Two stale figures to watch for

"A third offense is a 2-year felony." That has been out of date since April 1, 2013. Until that date the maximum for domestic assault with two or more previous convictions was 2 years and a $2,500 fine; 2012 PA 366 replaced it with 5 years and $5,000.^[2][3] The same act made the same change for repeat aggravated domestic assault.^[13][3]

"Second offense is MCL 750.81(3), third is 750.81(4)." Those were the numbers before 2016 PA 87 took effect on July 25, 2016. Since then the second-offense provision is subsection (4), the third-offense provision is subsection (5), and subsection (3) covers assault of a pregnant individual.^{[14][15][11][1]} MCL 750.81b, the statute on proving priors, has not been amended since 1994 and still refers to "section 81(3) or (4)," which now means subsections (4) and (5).^[14]

What counts as a prior conviction?

For MCL 750.81(4) and (5), a prior counts if it was a conviction for assaulting or assaulting and battering a person in a protected category under one of three groups of laws.^[5]

Type of prior	Counts?	Basis
Domestic assault under MCL 750.81	Yes[5]	MCL 750.81(4)(a), (5)(a)
A Michigan city, village or township ordinance substantially corresponding to MCL 750.81	Yes[16]	MCL 750.81(4)(a), (5)(a)
Aggravated assault (750.81a), felonious assault (750.82), assault with intent to murder (750.83), assault with intent to do great bodily harm or by strangulation (750.84), assault with intent to maim (750.86), against a protected person	Yes[5][8]	MCL 750.81(4)(b), (5)(b)
A law of another state, or an ordinance of another state's political subdivision, substantially corresponding to any of those sections, including MCL 750.81 itself	Yes[5]	MCL 750.81(4)(c), (5)(c)
A case deferred and dismissed under MCL 769.4a	Yes[6]	MCL 769.4a(5)
A conviction that was later set aside	May be considered for charging a crime as a second or subsequent offense[17]	MCL 780.622(9)

The earlier victim must have been a protected person

A prior felonious assault or similar conviction enhances a new domestic assault only if the earlier victim was a person described in MCL 750.81(2) or (3), meaning a person in a domestic relationship with the offender or a known-pregnant individual. The prosecutor must establish that relationship for the prior.^[8]

The earlier victim does not have to be the same person

There is no statutory requirement that the victim involved in the prior conviction be the same person as the victim of the current offense.^[18] A conviction involving a former spouse can enhance a later charge involving a different partner or a household member.^[18][5]

There is no look-back period

MCL 750.81(4) and (5) contain no time limit on how old a prior conviction may be. The text says "has previously been convicted" and "has 2 or more previous convictions," with no number of years.^[4] People sometimes assume a 5-, 7- or 10-year window, or borrow the look-back rules from drunk-driving law. The domestic assault statute has none.^[4]

Ordinance and out-of-state convictions count

Pleading to a city charge does not avoid the ladder: a conviction under a local ordinance substantially corresponding to MCL 750.81 counts as a prior for second- and third-offense domestic assault.^[16] Out-of-state convictions count as well. One caution if you read the benchbook used by Michigan judges: its bullet point for out-of-state priors omits MCL 750.81 itself, but the statute says "this section or section 81a, 82, 83, 84, or 86," so an out-of-state simple domestic assault conviction does count.^[5] See State charge vs. city ordinance.

A dismissed deferral counts

This rule is easy to miss. A discharge and dismissal after a deferral under MCL 769.4a "must be without adjudication of guilt and is not a conviction" for most purposes, "but it is a prior conviction in a prosecution under sections 81(4) and (5) and 81a(3)."^[6] A person who completed a deferral years ago can therefore face a second-offense charge if charged with a new domestic assault.^[6][1] The deferral is also not available again: only one discharge and dismissal is allowed per person.^[19] See Does a 769.4a deferral count as a conviction? and Should you take a 769.4a deferral?

Priors for repeat aggravated domestic assault are slightly different

For MCL 750.81a(3), the qualifying priors are convictions, against a person in one of the four domestic relationships, under MCL 750.81a or a substantially corresponding Michigan ordinance; under MCL 750.81, 750.82, 750.83, 750.84 or 750.86; or under a substantially corresponding law of another state or ordinance of another state's political subdivision.^[20] A dismissed deferral counts here too.^[6]

One difference: a prior assault on a pregnant individual under MCL 750.81(3) is not in the list for repeat aggravated domestic assault unless the victim was also in a domestic relationship with the offender.^[20]

How the prosecutor has to charge and prove priors

The procedure is set by MCL 750.81b.^[7]

1. Notice in the charging document. The charging document, or an amended one, must contain a separate notice that an enhanced sentence will be sought and must list the prior conviction or convictions relied on.^[7]
2. Kept from the jury. The notice "shall be separate and distinct from the language charging the current offense, and shall not be read or otherwise disclosed to the jury if the case proceeds to trial before a jury."^[7]
3. Proved at sentencing. The prior conviction or convictions "shall be established at sentencing," not at trial.^[9]
4. Any relevant evidence. The prior, and the facts establishing the required relationship with the earlier victim, may be shown by any relevant evidence, including a copy of a judgment of conviction, a transcript of a prior trial, plea or sentencing, information in a presentence report, or a statement by the defendant.^[9]
5. Decided by the judge. A prior may be the basis for an enhanced sentence if the court finds, by a preponderance of the evidence, both the prior conviction and one or more of the required relationships between the defendant and the earlier victim.^[8]

Can the accused contest the priors?

Yes. Before an enhanced sentence is imposed, the defendant or the defendant's attorney must be given an opportunity to deny, explain, or refute any evidence or information relating to the prior conviction or convictions, and must be permitted to present relevant evidence.^[21] The points open to challenge follow from the statute's own requirements: whether the earlier case was a conviction or qualifying dismissal at all, whether the earlier offense is on the list, whether an out-of-state law or local ordinance substantially corresponds, and whether the earlier victim was a protected person.^[5][8]

What a felony third offense means in court

A second offense stays in district court, where misdemeanors punishable by up to 1 year are tried and sentenced. A third offense is a felony that begins in district court and, if bound over, is tried and sentenced in circuit court.^[22] See The felony case timeline.

For sentencing-guidelines purposes, domestic assault with prior convictions under MCL 750.81(5) and aggravated domestic assault with prior convictions under MCL 750.81a(3) are both Class E crimes against a person with a 5-year statutory maximum.^[23] The guidelines are advisory, though judges must consult the range and justify the sentence imposed.^[24] See Felony sentencing guidelines.

A felony third offense can also be enhanced a second time. In People v Stricklin, the Court of Appeals held that a felony third-offense domestic violence conviction is subject to the general habitual-offender statutes on top of the domestic violence enhancement; in that case the trial court was authorized to raise the maximum to life under the fourth-offense habitual offender statute.^[25]

Other consequences that follow a repeat conviction

• Firearms. A second-offense conviction under MCL 750.81(4) is a "misdemeanor involving domestic violence" if both it and the previous conviction were for assaulting a person described in MCL 750.81(2).^[26] That brings the 8-year Michigan firearm prohibition.^[27] See Michigan's 8-year gun ban.
• Record clearing. A felony conviction for domestic violence cannot be set aside if the person has a previous misdemeanor conviction for domestic violence.^[28] See Expunging a domestic violence conviction.
• Deferral. The MCL 769.4a deferral is limited to a person who has not been convicted previously of an assaultive crime.^[29] See The MCL 769.4a deferral explained.

For all maximums in one place, see the Michigan domestic violence penalties chart; for the statute itself, see Domestic assault: MCL 750.81 explained.