2.2Heightened Protections to Prevent Revictimization

Several legal provisions include heightened protections for crime victims to prevent a crime victim from being revictimized by the accused or convicted offender, including:

•limiting the law enforcement officer’s authority to release persons charged with assault and battery offenses. See e.g., MCL 764.9c(3)(a).

•limiting pretrial release for individuals arrested for certain violent offenses. See e.g., MCL 780.582a; MCR 6.106(B)(1).

•authorizing the court to issue custody orders with protective conditions. See MCR 6.106(B)(5).

•authorizing the court to release defendants subject to protective conditions. See e.g., MCL 765.6b(1); MCL 765.6b(6); MCR 6.106(D).

•authorizing the court to release juveniles subject to protective conditions. See e.g., MCR 3.935(E); MCR 6.909(A).

•limiting the court’s authority to postconviction bail for defendants convicted of assaultive crimes. See e.g., MCL 770.9a(1); MCL 770.9a(2).

•authorizing the court to issue probation orders subject to protective conditions. See e.g., MCL 771.3(2)(o); MCL 712A.18;

•authorizing the court to issue parole orders subject to protective conditions. See e.g., MCL 791.236(16); MCL 791.236(18).

A.Limitation on Issuance of Appearance Tickets After Warrantless Arrest

Generally, a police officer who has made a warrantless arrest may issue and serve upon the person arrested an appearance ticket¹ and then release the person from custody. MCL 764.9c(1). “The appearance ticket issued under [MCL 764.9c(1)], or other documentation as requested, must be forwarded to the court, appropriate prosecuting authority, or both, for review without delay.” Id.

However, MCL 764.9c(3) prohibits the issuance of an appearance ticket to:

•“[a] person arrested for a domestic violence violation of [MCL 750.81 (assault and battery) or MCL 750.81a (assault with infliction of serious or aggravated injury)], or a local ordinance substantially corresponding to a domestic violence violation of [MCL 750.81 or MCL 750.81a], or an offense involving domestic violence as that term is defined in . . . MCL 400.1501.” MCL 764.9c(3)(a).

•“[a] person subject to detainment for violating a personal protection order.” MCL 764.9c(3)(b).

•“[a] person subject to a mandatory period of confinement, condition of bond, or other condition of release until he or she has served that period of confinement or meets that requirement of bond or other condition of release.” MCL 764.9c(3)(c).

•“[a] person arrested for a serious misdemeanor.” MCL 764.9c(3)(d).

•“[a] person arrested for any other assaultive crime.” MCL 764.9c(3)(e).

Except as provided in MCL 764.9c(5), an officer must issue an appearance ticket to and serve the ticket on a person arrested for a misdemeanor or an ordinance violation having a maximum permissible penalty of not more than one year in jail, a fine, or both, as long as the violation is not a serious misdemeanor, an assaultive crime, one of the domestic violence violations listed in MCL 764.9c(3)(a), or an operating while intoxicated offense. MCL 764.9c(4).

B.Arresting a Person Instead of Issuing an Appearance Ticket

A person has no right to be issued an appearance ticket in lieu of arrest. MCL 764.9c(8). A person arrested may appeal the legality of the arrest as provided by law, but an arrested person has no claim for damages against an officer or a law enforcement agency for being arrested rather than being issued an appearance ticket. Id.

Instead of issuing an appearance ticket as required by MCL 764.9c(4), a police officer may take the person arrested to a magistrate and promptly file a complaint under MCL 764.13 if any of the following circumstances exist:

“(a) The arrested person refuses to follow the police officer’s reasonable instructions.

(b) The arrested person will not offer satisfactory evidence of identification.

(c) There is a reasonable likelihood that the offense would continue or resume, or that another person or property would be endangered if the arrested person is released from custody.

(d) The arrested person presents an immediate danger to himself or herself or requires immediate medical examination or medical care.

(e) The arrested person requests to be taken immediately before a magistrate.

(f) Any other reason that the police officer may deem reasonable to arrest the person which must be articulated in the arrest report.” MCL 764.9c(5).

MCL 764.9c(6)-(8) set out the process that must be followed when a police officer arrests a person rather than issuing the person an appearance ticket.

C.Protections Provided When Determining Pretrial Release in Criminal Proceedings

Several types of pretrial release exist: conditional release, interim bail/interim bond, money bail, and personal recognizance. See Const 1963, art 1, § 15; MCL 765.6; MCR 6.106(B)(1)(a)(i). Alternatively, in some instances, pretrial release may (or must) be denied. See Const 1963, art 1, § 15; MCL 765.6; MCR 6.106(B)(1)(a)(i).

1.Availability of Pretrial Release

“With certain exceptions, a criminal defendant in Michigan is entitled as a matter of constitutional right to have reasonable bail established for pretrial release.” People v Davis, 337 Mich App 67, 74(2021), citing Const 1963, art 1, § 15. See also MCL 765.5; MCR 6.106(B).

Although often cited together, MCL 765.5 conflicts with Const 1963, art 1, § 15 and MCR 6.106 insofar as the statute “prohibits the trial court from granting pretrial release to [certain] defendant[s] . . . if the proof of the defendant’s guilt is evident or the presumption of guilt is great,” while the constitutional provision and court rule “permit[] the trial court to deny pretrial release to [those] defendant[s] . . . if the proof of the defendant’s guilt is evident or the presumption of guilt is great, but does not mandate denial of bail.” Davis, 337 Mich App at 84-85 (addressing the conflict with respect to defendants charged with murder and finding that although the court rule does not “explicitly state the grounds for denial of pretrial release to a defendant charged with murder,” it references and closely echoes the constitutional provision, which is “paramount to other laws in this state and is the law to which other laws must conform”). However, under the court rule and constitutional provision, bail may be denied to a defendant when one of the following circumstances applies and when proof of the defendant’s guilt is evident or the presumption of guilt is great:

(1) the defendant is charged with committing a violent felony, and during the 15 years preceding the commission of the violent felony, the defendant had been convicted of two or more violent felonies under the laws of Michigan or substantially similar laws of the United States or another state arising out of separate incidents. Const 1963, art 1, § 15(a); MCR 6.106(B)(1)(a)(ii)(B).

(2) the defendant is charged with murder or treason. Const 1963, art 1, § 15(b); MCR 6.106(B)(1)(a)(i).

(3) the defendant is charged with CSC-I, armed robbery, or kidnapping with intent to extort money or another valuable thing, “unless the court finds by clear and convincing evidence that the defendant is not likely to flee or present a danger to any other person.” Const 1963, art 1, § 15(c); MCR 6.106(B)(1)(b).

(4) the defendant is charged with committing a violent felony, and at the time of the commission of the violent felony, the defendant was on probation, parole, or released pending trial for another violent felony. Const 1963, art 1, § 15(d); MCR 6.106(B)(1)(a)(ii)(A).

2.Protective Measures Available Where Court Denies Pretrial Release

“If the court determines as provided in [MCR 6.106(B)(1)²] that the defendant may not be released, the court must order the defendant held in custody for a period not to exceed 90 days after the date of the order, excluding delays attributable to the defense, within which trial must begin or the court must immediately schedule a hearing and set the amount of bail.”³ MCR 6.106(B)(3).

“The court may, in its custody order, place conditions on the defendant, including but not limited to restricting or prohibiting [the] defendant’s contact with any other named person or persons, if the court determines the conditions are reasonably necessary to maintain the integrity of the judicial proceedings or are reasonably necessary for the protection of one or more named persons. If an order under this paragraph is in conflict with another court order, the most restrictive provisions of the orders shall take precedence until the conflict is resolved.” MCR 6.106(B)(5).

“Nothing in [MCR 6.106] limits the ability of a jail to impose restrictions on detainee contact as an appropriate means of furthering penological goals.” MCR 6.106(B)(6).

3.Denial of Interim Bond or Personal Recognizance for Domestic Violence Charges

For certain domestic violence charges, MCL 780.582a(1) prevents a person from being released by law enforcement on an interim bond under MCL 780.581 or on a personal recognizance under MCL 780.583a and requires the person to be “held until he or she can be arraigned or have interim bond set by a judge or district court magistrate[.]” Specifically,

“A person shall not be released on an interim bond as provided in [MCL 780.581] or on his or her own recognizance as provided in [MCL 780.583a], but shall be held until he or she can be arraigned or have interim bond set by a judge or district court magistrate if either of the following applies:

(a) The person is arrested without a warrant under . . . MCL 764.15a,^[4] or a local ordinance substantially corresponding to that section.

(b) The person is arrested with a warrant for a violation of . . . MCL 750.81 [(assault and battery) or MCL] 750.81a [(assault with infliction of serious or aggravated injury)], or a local ordinance substantially corresponding to [MCL 750.81] and the person is a spouse or former spouse of the victim of the violation, has or has had a dating relationship with the victim of the violation, has had a child in common with the victim of the violation, or is a person who resides or has resided in the same household as the victim of the violation.” MCL 780.582a(1)(a)-(b).

4.Protective Measures Available Where Defendant Released on Personal Recognizance or Interim Bail/Bond

MCL 780.582a. “If a judge or district court magistrate sets interim bond under [MCL 780.582a], the judge or magistrate shall consider and may impose the condition that the person released shall not have or attempt to have contact of any kind with the victim.” MCL 780.582a(2). If the judge or district court magistrate orders a person released subject to protective conditions under MCL 780.582a, MCL 780.582a(3)-(6) set out certain procedures that must be followed.

“[MCL 780.582a] does not limit the authority of judges or district court magistrates to impose protective or other release conditions under other applicable statutes or court rules.” MCL 780.582a(7). See for example MCL 764.15b(2)(b), which requires a bond be set within 24 hours after an arrest for an alleged PPO violation.

MCL 780.755; MCL 780.813a. If a defendant is released on bond or personal recognizance, the bond or personal recognizance may be revoked if the defendant directly or indirectly threatens or intimidates the victim or the victim’s family. MCL 780.755(2); MCL 780.813a. See Section 2.6(B) for additional information on revocation of the bond or personal recognizance based on acts or threats of physical violence or intimidation against the victim.

Violating Bond Conditions. Violation of a bond condition is punishable by criminal contempt because “a court’s decision in setting bond is a court order[,]” and “a bail decision is an interlocutory order.” People v Mysliwiec, 315 Mich App 414, 417, 418 (2016) (finding a “defendant’s bond condition prohibiting the use of alcohol was a court order punishable by contempt[]” under MCL 600.1701(g) where “[t]he trial court . . . issued written mittimuses, which required [the] defendant have no alcohol[]” following the defendant’s arraignment on a charge of operating a motor vehicle while under the influence of alcohol). For information on contempt of court, see the Michigan Judicial Institute’s Contempt of Court Benchbook and Contempt Quick Reference Materials.

5.Release of Defendant Subject to Protective Conditions

MCL 765.6b(1) permits “[a] judge or district court magistrate [to] release a defendant under [MCL 765.6b] subject to conditions reasonably necessary for the protection of 1 or more named persons.”^5,6 See also MCR 6.106(D), which authorizes the court to release the defendant subject to conditions it determines are appropriate to reasonably ensure the defendant’s appearance or the public’s safety.⁷

If the judge or district court magistrate orders a person released subject to protective conditions under MCL 765.6b, MCL 765.6b sets out certain procedures that must be followed.

Among other conditions set out under MCR 6.106(D)(2), the judge or district court magistrate may, for purposes of protecting the named person(s), impose conditions on the defendant’s pretrial release that require the defendant to “not possess a firearm or dangerous weapon[,⁸]” “not enter specified premises or areas[,] [] not assault, beat, molest, or wound a named person or persons[,]” “comply with any condition limiting or prohibiting contact with any other named person or persons[,⁹]” “satisfy any injunctive order made a condition of release[, and]” “comply with any other condition . . . reasonably necessary to ensure . . . the safety of the public.” MCR 6.106(D)(2).

The judge or district court magistrate may also “order the defendant to wear an electronic monitoring device as a condition of release” where “[the] defendant [] is charged with a crime involving domestic violence, or any other assaultive crime, [and] is released under [MCL 765.6b(1) and MCL 765.6b(6).]”¹⁰ MCL 765.6b(6). “In determining whether to order a defendant to wear an electronic monitoring device, the court shall consider the likelihood that the defendant’s participation in electronic monitoring will deter the defendant from seeking to kill, physically injure, stalk, or otherwise threaten the victim prior to trial.” Id.

Note: “An electronic monitoring device ordered to be worn under [MCL 765.6b(6)] shall provide reliable notification of removal or tampering.” MCL 765.6b(6). Moreover, “[t]he court shall instruct the entity monitoring the defendant’s position to notify the proper authorities if the defendant violates the order.” MCL 765.6b(6).

“With the informed consent of the victim, the court may also order the defendant to provide the victim of the charged crime with an electronic receptor device capable of receiving the global positioning system information from the electronic monitoring device worn by the defendant that notifies the victim if the defendant is located within a proximity to the victim as determined by the judge or district court magistrate in consultation with the victim.” MCL 765.6b(6). “The victim shall also be furnished with a telephone contact with the local law enforcement agency to request immediate assistance if the defendant is located within that proximity to the victim.” MCL 765.6b(6). “In addition, the victim may provide the court with a list of areas from which he or she would like the defendant excluded[, and] [t]he court shall consider the victim’s request and shall determine which areas the defendant shall be prohibited from accessing.” Id. 

Note: The victim may make a request for termination of his or her participation in the defendant’s monitoring at any time, and the court cannot impose sanctions against the victim for refusing to participate in the monitoring. MCL 765.6b(6).

MCL 765.6b(7) also permits the judge or district court magistrate to release “a defendant subject to conditions reasonably necessary for the protection of the public if the defendant has submitted to a preliminary roadside analysis that detects the presence of alcoholic liquor, a controlled substance, or other intoxicating substance, or any combination of them[.]”

6.Release of Juvenile Subject to Protective Conditions

In juvenile delinquency proceedings, MCR 3.935(E) authorizes the court to release the juvenile subject to conditions it determines are appropriate to reasonably ensure the juvenile’s appearance or the public’s safety.¹¹ If the court releases a juvenile under MCR 3.935(E), certain procedures must be followed.¹² 

In automatic waiver cases, MCR 6.909(A) authorizes the court to release the juvenile to a parent or guardian subject to “any lawful condition” on the juvenile’s release. For release of a juvenile in felony cases, see MCR 6.909.

If the juvenile is afforded conditional release, the conditional release may be revoked if the defendant directly or indirectly threatens or intimidates the victim or the victim’s family. MCL 780.785(2). See Section 2.6(C) for additional information on revocation of the conditional release based on acts or threats of physical violence or intimidation against the victim.

D.Limitation on Post-Conviction Bail

Before conviction, a defendant has a right, with certain exceptions, to reasonable bail.¹³ See Const 1963, art 1, § 15; Const 1963, art 1, § 16; MCL 765.5; MCL 765.6; MCR 6.106(B)(1)(b). However, after conviction, a defendant is “no longer entitled to the presumption of innocence and release on bail or bond becomes a matter of discretion not of right.” People v Tate (Daniel), 134 Mich App 682, 693 (1984). See also MCL 770.8.

1.Before Sentencing

MCL 770.9a(1) requires the court to deny bail to a defendant convicted of and awaiting sentence for an assaultive crime, “unless the trial court finds by clear and convincing evidence that the defendant is not likely to pose a danger to other persons and that [MCL 770.9b] does not apply.” MCL 770.9b prohibits postconviction bail for defendants convicted of sexually assaulting a minor.¹⁴ 

2.After Sentencing

MCL 770.9a(2)(a)-(b) require a court to deny bail to a defendant convicted of an assaultive crime where the defendant has been sentenced to a term of imprisonment and has filed an appeal (or an application for leave to appeal), “unless the trial court or the court to which the appeal is taken finds by clear and convincing evidence” that all of the following exist:¹⁵

•MCL 770.9b, which prohibits postconviction bail for defendants convicted of sexually assaulting a minor, does not apply.¹⁶

•The defendant is unlikely to be a danger to other persons.

•The defendant’s appeal or application presents a substantial question of law or fact.

Note: Pending a prosecution appeal of a conviction reversed by the Court of Appeals, a defendant’s request for bail must be analyzed under the statutes governing postconviction appeals—MCL 770.8, MCL 770.9, and MCL 770.9a(2)—and not the statute governing prosecution appeals from a court of record, MCL 765.7,¹⁷ which would permit a defendant to be released on personal recognizance under certain conditions. People v Sligh, 431 Mich 673, 681-682 (1988) (the defendant’s motion for release on personal recognizance was denied).¹⁸

E.Probation Orders Subject to Protective Conditions

If a defendant is placed on probation following conviction, the court may order probation conditions “reasonably necessary for the protection of 1 or more named persons.”¹⁹ MCL 771.3(2)(o). When imposing conditions of probation under MCL 771.3(2) and MCL 771.3(3), “[t]he court shall also consider the input of the victim and shall specifically address the harm caused to the victim, as well as the victim’s safety needs and other concerns, including, but not limited to, any request for protective conditions or restitution.” MCL 771.3(11).

For juvenile delinquency cases, see MCL 712A.18, which provides the court with authority to place a juvenile on probation subject to terms or conditions “the court determines necessary for the physical, mental, or moral well-being and behavior of the juvenile[,]” among other dispositional options.²⁰

Certain statutes pertaining to specific offenses also specifically authorize the court to include no contact conditions in probation orders. See e.g., MCL 750.411h(3)(b) (stalking) and MCL 750.411i(4)(b) (aggravated stalking).

For domestic violence cases, the court must revoke probation for violation of a no contact order. MCL 769.4a(4)(c).

If the court orders the early termination of an offender’s probation and the order of probation included a condition for the victim’s protection, the court must, at the victim’s request, notify the victim by mail of the early termination. MCL 780.768b; MCL 780.795a; MCL 780.827b.

F.Parole Orders Subject to Protective Conditions

Parole orders may contain conditions intended to protect one or more named persons. See MCL 791.236(16).

If a prisoner serving a sentence for aggravated stalking under MCL 750.411i is paroled and the victim has registered to receive notification under the CVRA about that prisoner, the prisoner’s parole order must require that the prisoner’s location be monitored by a global positioning monitoring system (GPS) during the entire parole period. MCL 791.236(18). If, at the time the prisoner was paroled, no victim of that crime had registered to receive notification, but a victim registers to receive notification after the prisoner’s parole, the parole order must immediately be modified to include the requirement that the prisoner’s location be monitored by a GPS. Id. For a detailed discussion of victim notification requirements, see Chapter 5.