Who Decides Whether Domestic Violence Charges Are Filed in Michigan?

The prosecutor decides. In Michigan, "the prosecutor alone possesses the authority to determine whether to prosecute the accused," and that includes deciding what charges to file.^[1] Police gather the facts and may arrest, and a judge or magistrate must find probable cause before a warrant or summons issues, but neither the officer nor the person named as the victim files the charge.^[5][7]

This page follows a domestic violence case from the police report to the charging document, and explains the vocabulary along the way: complaint, authorization, warrant and summons.

Who does what?

Person	Role in the charging decision
Police officer	Investigates, may arrest on reasonable cause, and must prepare a domestic violence report.[8][9]
Police agency	Must file a copy of the report with the prosecuting attorney within 48 hours after the incident is reported.[2]
Prosecutor	Alone decides whether to prosecute; a complaint may not be filed without the prosecutor's written approval, unless security for costs is filed.[1][4]
Judge or district court magistrate	Must find probable cause that the accused committed the offense before issuing a warrant or summons.[5]
Complaining witness	Has a right to be consulted before a dismissal or plea agreement is finalized, but no authority to decide whether the case goes forward.[10][7]

Step by step: from report to charge

1. The report reaches the prosecutor. After investigating or intervening in a domestic violence incident, the officer must prepare a report on the standard form or one substantially similar.^[9] The agency keeps the report and must file a copy with the prosecuting attorney within 48 hours after the incident is reported to the agency.^[2] Agency policy must provide for a written report whether or not an arrest is made.^[3]
2. The prosecutor reviews it. The prosecutor decides whether to prosecute and on what charge.^[1] What the law requires is an authorization: a judge or magistrate may not issue a warrant or summons for an offense other than a minor offense unless a written authorization is filed and signed by the prosecuting attorney, or security for costs is filed.^[11] A "minor offense" is one with a maximum of no more than 92 days and a fine of no more than $1,000, so a first-offense domestic assault under MCL 750.81(2), which carries up to 93 days, is not a minor offense.^[12][13]
3. A complaint is prepared and sworn. A complaint is a written accusation that a named or described person committed a specified criminal offense. It must include the substance of the accusation and the name and statutory citation of the offense.^[14] The person who signs it does not have to be the victim.^[15]
4. A judge or magistrate reviews it. The court must issue an arrest warrant or a summons if it is presented with a proper complaint and finds probable cause to believe the accused committed the offense.^[5] The finding may rest on the factual allegations in the complaint, the complainant's sworn testimony or affidavit, or supplemental sworn testimony or affidavits.^[16]
5. A warrant or a summons issues. Michigan courts ordinarily must issue a summons instead of an arrest warrant, but a complaint for an offense involving domestic violence is one of the listed exceptions, so the court may issue an arrest warrant.^[17]
6. Arraignment. The defendant appears before the court, is told the offense and the maximum sentence, and is advised of the right to an attorney and to a trial.^[18]

The authorization and complaint can be handled electronically. A complaint may be made, and a warrant or summons issued, by electronic means from any location in Michigan if the prosecuting attorney authorizes it, the judge or magistrate administers the oath, and the applicant signs the complaint.^[19]

What if the person was arrested at the scene?

An on-scene arrest reverses the order but not the roles. An officer who arrests without a warrant must, without unnecessary delay, take the person before a magistrate and present a complaint stating the charge.^[20] The complaint still needs the prosecutor's written approval.^[4] In the meantime, a person arrested for domestic assault is held until arraignment or until a judge or district court magistrate sets interim bond.^[21]

If a person is released without having been arraigned on a charge, that is not the end of the matter, because the prosecutor can still authorize a charge later, within the limitations period.^[1][6] See How long are you held after an arrest? and Charged later, by warrant or by mail.

Does the victim have to "press charges"?

No. The phrase does not describe Michigan procedure. Three rules make the point:

• Police policy must say that the arrest decision should not be based solely on the consent of the victim to any subsequent prosecution.^[22]
• A magistrate may not refuse to accept a domestic assault complaint because it is signed on information and belief by someone other than the victim.^[15]
• The Court of Appeals has said that crime victims have not been given authority to determine whether the prosecution of a crime should go forward or be dismissed.^[7]

The complaining witness is not shut out. In a serious misdemeanor case, which includes domestic assault, the prosecutor must offer the victim the opportunity to consult about dismissal, plea or sentence negotiations and pretrial diversion before finalizing any such negotiation.^[10][23] See Can the victim drop the charges?

What does the prosecutor weigh?

The statutes cited in this guide do not list the factors; the Court of Appeals describes the prosecutor's authority as "broad discretion."^[1] What the prosecutor has in hand is set by law: a report that must include a narrative of the incident, whether and how many times the suspect physically assaulted the victim, any weapon or object used, all injuries and how they were sustained, and any previous domestic violence incidents between the two people.^[9]

What charge to file is part of the same discretion.^[1] The differences between the possible charges are covered in Misdemeanor vs. felony domestic violence and the penalties chart.

The standard also changes as the case moves. A warrant or summons issues on probable cause.^[5] At trial the prosecutor must prove guilt beyond a reasonable doubt.^[24]

State charge or city ordinance?

Michigan's arrest and bond statutes refer both to the state domestic assault statute, MCL 750.81, and to "a local ordinance substantially corresponding" to it.^[8][21] A domestic assault can therefore be charged under state law or, in some communities, under a local ordinance. Which office handles the case and what difference it makes are explained in State charge vs. city ordinance.

What if the prosecutor declines to charge?

Without the prosecutor's written approval, a complaint may not be filed. Both the court rule and the statute name one alternative to the prosecutor's written approval, the filing of security for costs with the court.^[4][11] This guide does not describe a procedure for contesting a prosecutor's decision not to charge, because none could be confirmed from a primary source.

A decision not to charge now is also not permanent. The general limitations period for domestic assault is 6 years after the offense.^[6] See Statute of limitations for domestic violence.

A person who needs protection does not have to wait for a charging decision. A personal protection order (PPO) is a separate civil court order that a person can petition for directly, and the notice police hand out after a domestic call must explain that right.^[25] See How to get a PPO in Michigan.

How long does the decision take?

The only fixed deadline at the front end is the agency's: 48 hours to get the report to the prosecutor.^[2] When a person is in custody, the timetable is driven by the rule that an arrested person must be arraigned without unnecessary delay.^[26] When no one is in custody, no comparable rule sets the pace, and the timing varies by county and by case.

What people get wrong

"The victim pressed charges." The victim is a witness. The charging decision is the prosecutor's alone.^[1]

"The police charged me." Police arrest and report. A complaint needs the prosecutor's written approval and a judicial finding of probable cause.^[4][5]

"I was released without charges, so I was cleared." A domestic assault charge may generally be filed within 6 years after the offense.^[6]

"Only the victim can sign the complaint." A domestic assault complaint signed on information and belief by someone else cannot be refused on that ground.^[15]