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What an MCL 769.4a Domestic Violence Deferral Leaves Behind
Michigan lets a court take a guilty plea in a first domestic violence case, hold off on entering a judgment, and dismiss the charge if the person completes probation. The relief is real and it is also narrower than the word deferral suggests, in four specific ways that are written into the statute.
MCL 769.4a(1) makes it available where the individual has not previously been convicted of an assaultive crime, pleads guilty to or is found guilty of a violation of MCL 750.81 or 750.81a, and the victim is a spouse or former spouse, a person with whom the offender has a child in common, a person in a dating relationship, or someone who resides or has resided in the same household.
The Court Checks Before It Defers
Eligibility is verified rather than assumed. Before deferring proceedings, the court shall contact the Department of State Police and determine from its records whether the accused has previously been convicted of an assaultive crime or has previously had proceedings deferred under this section.
Consent is also broader than in other Michigan deferral statutes. The court may defer with the consent of the accused and of the prosecuting attorney, and the prosecuting attorney gives that consent in consultation with the victim. A defendant, a prosecutor, and a victim’s position all bear on whether the section is available at all.
That is a different structure from the Holmes Youthful Trainee Act, which requires prosecutor consent only for offenses committed from the twenty-first birthday. The two statutes are separate and have been confused before, including in this firm’s own older material, so it is worth naming the difference rather than assuming it.
The Hearings Are Public
Subsection (6) says something people consistently get backward. All court proceedings under this section must be open to the public. Only the record of proceedings during the period of deferral is closed to public inspection.
The distinction is between the courtroom and the file. Someone can sit in the gallery. What they cannot later pull is the deferred record itself, unless a judgment of guilt is entered.
Where no judgment of guilt is entered, the Department of State Police retains a nonpublic record of the arrest, the court proceedings, and the disposition. That record is open to Michigan courts, law enforcement, the Department of Corrections, and prosecuting attorneys for the performance of their duties, and for screening employment within those same agencies.
It Counts as a Prior for the Next Case
On fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings, without adjudication of guilt. The discharge is not a conviction for purposes of the section or for the disqualifications and disabilities that the law imposes on conviction of a crime.
One exception is written into the same sentence, and it is the consequential one. The discharge is a prior conviction in a prosecution under MCL 750.81(4) and (5) and MCL 750.81a(3), which are the enhancement provisions for later domestic violence charges.
A second domestic violence allegation therefore arrives with the first one counting against it, even though the first produced no conviction. The nonpublic record is expressly open to courts, law enforcement, and prosecutors for showing that a defendant has already once had proceedings deferred, and our page on Michigan domestic violence charges covers how those enhancements work.
A Deferral Is Not the Same as a Set-Aside
Two different Michigan mechanisms both end with a record that the public cannot see, and they are not interchangeable. A deferral under this section prevents a conviction from being entered in the first place. A set-aside under MCL 780.621 clears a conviction that already exists.
The limits differ accordingly. A set-aside leaves restitution, Sex Offenders Registration Act consequences, and money already paid untouched under MCL 780.622. A deferral avoids the conviction but leaves the deferred disposition available as a prior for domestic violence enhancement.
Which route applies is decided by where a case is, not by preference. Anyone comparing them is usually choosing between a live case and a closed one rather than between two options on the same file.
Once, and It Can Be Lost
The statute allows only one discharge and dismissal under the section with respect to any individual. It is available a single time in a lifetime, which is why it is worth thinking about whether the present case is the right one to spend it on.
Losing it is easier than it looks. On a violation of a term or condition of probation, the court may enter an adjudication of guilt. In three situations the court shall do so, with no discretion: where the accused commits an assaultive crime during probation, violates a court order to receive counseling regarding violent behavior, or violates a no-contact order naming an individual.
Probation may carry substantial conditions in the meantime. It can include mandatory counseling at the accused’s own reasonable cost, participation in a drug treatment court, and imprisonment for up to 12 months served at intervals within the probation period, subject to the offense’s own maximum where that is shorter. Day parole and work or school release are available at the court’s discretion.
Whether to use the one deferral available is a decision about the next case as much as this one. We are glad to look at it with you before anything is filed. Call us at (800) 525-6386.
Deciding Whether a Deferral Is Worth It
A dismissal that still counts as a prior conviction for the following charge is worth having and worth understanding precisely before it is accepted. At Neumann Law Group, we take Michigan criminal defense cases in Northern Michigan and statewide, and we can walk through what the deferral costs and what it preserves. We are happy to talk it through with you. Call (800) 525-6386 or contact our office.