Should You Take a Domestic Violence Deferral Under MCL 769.4a?

A deferral under MCL 769.4a is a conditional dismissal that begins with a guilty plea or a finding of guilt: the court may hold off entering a judgment of guilt and place the person on probation, and if the terms of probation are fulfilled the case is discharged and dismissed.^[1][2] Whether to consent to one is the accused's decision, and the points people weigh are the evidence in the case, whether every condition can be completed, and the consequences that survive the dismissal. This page lists what the deferral gains and what it costs. It does not tell you which to choose.

How the statute works step by step is in The MCL 769.4a deferral explained.

First question: is it available to you?

A deferral is not a right and is not automatic. Check each of these before weighing anything else:

1. The charge. It applies only to assault or assault and battery under MCL 750.81 and aggravated assault under MCL 750.81a, where the victim is a spouse or former spouse, a person with a child in common, a current or former dating partner, or a current or former household member.^[1]
2. Your record. You must not have been convicted previously of an assaultive crime, a term that here includes any prior assault under MCL 750.81 or a corresponding local ordinance.^[1][4] The court checks State Police records before deferring.^[1]
3. No earlier deferral. Only one discharge and dismissal is allowed.^[2]
4. Consent. The accused and the prosecuting attorney must both consent, and the prosecutor consults the victim.^[1] The statute does not say when a prosecuting attorney should consent, and even with both consents the court "may" defer; it is not required to.^[1]

The statute covers a person who "pleads guilty to, or is found guilty of" the offense, so it is not limited to guilty pleas.^[1]

What a deferral gains

Benefit	What the statute says
No judgment of guilt is entered at the outset	The court defers further proceedings and places the person on probation.[1]
Dismissal at the end	When the person fulfills the terms and conditions of probation, the court must discharge the person and dismiss the proceedings.[2]
Not a conviction for the purposes the statute names	The discharge and dismissal is without adjudication of guilt and is not a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime.[2]
Limited public access	During the deferral the record of proceedings is closed to public inspection, although the hearings themselves are open to the public. Unless a judgment of guilt is entered, the State Police keep a nonpublic record of the arrest, proceedings and disposition.[5][6]
Terms on the record	If there is a plea agreement, it is stated on the record or put in a signed writing, and the court confirms its terms.[7]

What a deferral costs

You give up the trial

A deferral starts with a guilty plea or a finding of guilt.^[1] A defendant who pleads gives up the right to a trial, to call and cross-examine witnesses, to remain silent at trial, and the presumption of innocence and proof beyond a reasonable doubt.^[8] If a term or condition of probation is later violated, the court may enter an adjudication of guilt and proceed to sentencing, and for the three violations listed below it must.^[9][3]

Probation with real conditions

• The order may include any condition authorized by the general probation statute, including a mandatory counseling program at the person's own reasonable cost.^[10]
• Jail can be ordered during deferral probation: not more than 12 months, and not more than the maximum for the offense if that maximum is shorter.^[10] The maximum for a first offense under MCL 750.81(2) is 93 days.^[11]
• State minimum costs and the crime victim rights assessment still apply to a deferred case.^[12] The assessment is $75 for a misdemeanor, and the minimum state cost for a misdemeanor is not less than $50.^[13][14] The court may also impose other costs, which can include the expenses of providing legal assistance to the defendant.^[15]
• The probation statute caps a probation term for an offense that is not a felony at 2 years.^[16] It also makes a defendant convicted of a domestic-violence-related violation of MCL 750.81 or 750.81a ineligible for reduced probation; both provisions are worded for a defendant who is "convicted," and no source reviewed for this guide says how they apply to deferral probation.^[17]
• A condition for the protection of a named person, such as no contact, can be part of probation, and an order containing one is entered in the Law Enforcement Information Network.^[18][19]

Three violations require the court to enter the conviction

For a violation of any term or condition of probation the court may enter an adjudication of guilt.^[9] For three it must: committing an assaultive crime during probation, violating a court order to receive counseling regarding violent behavior, and violating a court order to have no contact with a named individual.^[3] The text of the third item contains no exception for contact that the named individual wanted or started.^[3] A probation order is the court's order, and the court may amend it in form or substance at any time; until it does, the condition stands as written.^[20]

It still counts against you in specific ways

• Later charges. A completed deferral "is a prior conviction" in a later prosecution for second- or third-offense domestic assault or repeat aggravated domestic assault.^[2] A second offense carries up to 1 year, and a third is a felony carrying up to 5 years.^[21][22] The statute sets no limit on how old a prior may be.^[23]
• One use only. A person may receive only one discharge and dismissal, and courts, police and prosecutors may use the nonpublic record to show that a defendant has already had one.^[2][24]
• Who can see the record. The nonpublic record is open to courts, law enforcement, the Department of Corrections and prosecutors in performing their duties and in their own hiring decisions.^[25] The Department of Health and Human Services may use it to enforce child protection and vulnerable adult protection laws.^[26]
• Fingerprints stay. A person whose case is dismissed after a deferral is not "found not guilty" and is not entitled to have the fingerprint and arrest card destroyed.^[27]
• Other convictions. A case deferred and dismissed under MCL 769.4a is considered a misdemeanor conviction when counting convictions for eligibility to set aside any other conviction.^[28]

Two areas where the answer is not settled by the Michigan statute

Firearms. Michigan's statute says a discharge and dismissal is not a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime.^[2] The federal regulation says a person is not considered convicted of a misdemeanor crime of domestic violence unless the person is considered convicted by the jurisdiction where the proceedings were held.^[29] No primary source reviewed for this guide applies those two texts to a Michigan deferral, including the period while probation is still running, so this guide states no conclusion. Separately, a court may impose protective conditions during probation.^[18] This is a question to put to a lawyer before possessing a firearm at any stage. See Does a 769.4a deferral count as a conviction?

Immigration. Federal immigration law has its own definition of "conviction." It includes a case in which adjudication of guilt has been withheld, where the person entered a plea of guilty or no contest or was found guilty and the judge ordered some form of punishment, penalty, or restraint on liberty.^[30] No decision applying that definition to a Michigan deferral was reviewed for this guide. Defense counsel must tell a noncitizen client whether a plea carries a risk of deportation.^[31]

How the alternatives compare

Outcome	Judgment of guilt?	Counts as a prior for a later domestic assault charge?	Fingerprints and arrest record
Acquittal at trial	No	No	Biometric data and arrest card must be destroyed, with listed exceptions.[32][33]
Dismissal before trial	No	No	Arrest record removed from the public database; destroyed if the prosecutor agrees or no one objects within 60 days.[34]
Completed 769.4a deferral	No[2]	Yes[2]	Kept; nonpublic record retained.[27][6]
Conviction (plea or verdict) with ordinary probation	Yes	Yes[21]	Kept; domestic assault is excluded from automatic set-aside and has a 5-year wait for an application.[35][36]
Deferral ended by a violation	Yes, if the court enters an adjudication of guilt: it may for any violation and must for three.[9][3]	Yes[21]	The fingerprint-destruction provision applies to a person found not guilty.[32]

For a person who was 18 through 25 at the time of the offense, the Holmes Youthful Trainee Act is a separate route that requires a guilty plea.^[37][38] See HYTA and domestic violence. A delayed sentence is different again: it only postpones sentencing for up to a year and does not itself provide for dismissal.^[39][40]

Factors that weigh each way

None of these decides the question alone. They are the points to work through with a lawyer.

• How strong is the prosecution's case? A deferral entered on a guilty plea means there is no trial and so no possibility of an acquittal, after which the fingerprints and arrest card must be destroyed unless a listed exception applies.^[8][32][33] The evidence analysis is set out in Plea or trial: how to think about the decision.
• Can you complete every condition? Counseling attendance and no contact are the two conditions whose violation requires the court to enter the conviction.^[3] What programs involve is covered in Batterer intervention programs.
• What turns on the word "conviction"? Michigan's 8-year firearm ban and the 5-year wait before a set-aside application are both written for a person who has been convicted.^[41][36] A completed deferral is, in the statute's words, not a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime.^[2] How those texts and the federal rules apply to a particular person is discussed above and is a question for a lawyer.
• What is the same either way? A completed deferral and a conviction each count as a prior in a later prosecution for second- or third-offense domestic assault.^[2][21]
• Is it your only one? The statute allows one discharge and dismissal per person.^[2]

What people get wrong

"It wipes the slate clean." It is a prior conviction for enhancement, the State Police keep a nonpublic record, and fingerprints are not destroyed.^[2][6][27]

"A slip on probation only means a warning." A violation of a court order to have no contact with a named individual, or of a court order to receive counseling regarding violent behavior, requires the court to enter an adjudication of guilt, as does an assaultive crime committed during probation.^[3]

"The victim decides whether I get it." The consent the statute requires is that of the accused and of the prosecuting attorney, and the prosecutor's is given in consultation with the victim.^[1]

"It is the same as a plea under advisement." No Michigan statute or court rule creating a "plea under advisement" for domestic assault was found in the sources reviewed for this guide. The statutory routes to dismissal after a guilty plea that were identified are MCL 769.4a and, for people in its age range, the Holmes Youthful Trainee Act.^[42]

Questions to ask before deciding

1. Has the prosecuting attorney consented to a deferral in this case?^[1]
2. What exact conditions will the probation order contain, for how long, and at what cost?^[10][12]
3. Will there be a no-contact condition during probation, and can it be modified if circumstances change?^[18]
4. What happens to firearms during and after probation, in light of the state and federal texts?^[2][29]
5. For a noncitizen, how does federal immigration law treat this disposition?^[30]
6. What is the realistic alternative to the deferral: trial on what evidence, or a different agreement?^[43]

Related guides: Probation conditions, Probation violations, and Second and third offenses.