1.26Initiating a Misdemeanor Action by Issuing a Citation¹

Under the MVC, a police officer must issue a citation² to a person who is arrested without a warrant for “a violation of [the MVC] punishable as a misdemeanor, or an ordinance substantially corresponding to a provision of [the MVC] and punishable as a misdemeanor, under conditions not referred to in [MCL 257.617,³ MCL 257.619,⁴ or MCL 257.727.⁵]” MCL 257.728(1). But see MCL 764.9c(1), a provision in the Code of Criminal Procedure authorizing an officer to issue an appearance ticket under the same circumstances in lieu of issuing a formal complaint under MCL 764.13.⁶ “The appearance ticket . . . , or other documentation as requested, must be forwarded to the court, appropriate prosecuting authority, or both, for review without delay.” MCL 764.9c(1). “Except as provided in [MCL 764.9c(5)], a police officer shall issue to and serve upon a person an appearance ticket . . . and release the person from custody if the person has been arrested for a misdemeanor or ordinance violation that has a maximum permissible penalty that does not exceed 1 year in jail or a fine, or both, and is not . . . an operating while intoxicated offense.” MCL 764.9c(4). MCL 764.9c “does not create a right to the issuance of an appearance ticket in lieu of an arrest. An arrested person may appeal the legality of his or her arrest as provided by law. However, an arrested person does not have a claim for damages against a police officer or law enforcement agency because he or she was arrested rather than issued an appearance ticket.” MCL 764.9c(8).

However, where no arrest occurs, the MVC provides that “[a] police officer may issue a citation to a person who is an operator of a motor vehicle involved in an accident if, based upon personal investigation, the officer has reasonable cause to believe that the person has committed a misdemeanor under [the MVC] in connection with the accident.” MCL 257.728(8) (emphasis added). See also MCR 6.615(A)(1)(b). “The citation may serve as a sworn complaint and as a summons to command (a) the initial appearance of the defendant; and (b) for misdemeanor traffic cases, a response from the defendant as to his or her guilt of the violation alleged.” MCR 6.615(A)(2). “The citation must be signed by the officer in accordance with MCR 1.109(E)(4); if a citation is prepared electronically and filed with a court as data, the name of the officer that is associated with issuance of the citation satisfies this requirement.” MCR 6.615(A)(1)(a).

In lieu of being issued a citation to appear, a person arrested without a warrant for a traffic misdemeanor may demand to be brought to a judge or district court magistrate or, if the person is a juvenile,⁷ to the family division of the circuit court for arraignment as provided in MCL 257.727. MCL 257.728(1). If a nonresident demands an immediate arraignment, and a judge or district court magistrate is not available to conduct the arraignment or if an immediate trial cannot be held, the nonresident may deposit with the officer a guaranteed appearance certificate or a sum of money not to exceed $100 and be issued a written citation. MCL 257.728(5). However, a nonresident may not be issued a written citation if he or she was arrested for a violation of any offense listed in MCL 257.727(a)-(d). MCL 257.728(5).

A.Citation Requirements

In addition to including a proper signature, MCR 6.615(A)(1)(a), the citation must contain “the name and address of the person, the violation charged, and the time and place when and where the person shall appear in court,” MCL 257.728(1) (warrantless arrest for alleged misdemeanor violation). See also MCL 257.728(8) (requiring substantially similar information for traffic accidents allegedly involving a misdemeanor where no arrest is made). The officer must complete an original and three copies of the citation. MCL 257.728(1); MCL 257.728(8). The original must be filed with the court in which the appearance is to be made, the first copy is retained by the local traffic enforcement agency, the second copy is delivered to the violator if the violation is a misdemeanor, and the third copy is delivered to the violator if the violation is a civil infraction. MCL 257.727c(1).⁸ See also MCL 257.743, which requires additional information pertaining to an accused’s right to admit or deny responsibility for a traffic civil infraction citation.

B.Accepting a Plea Based on a Citation

A judge or district court magistrate (if authorized to do so)⁹ can accept a plea of guilty or not guilty based solely on a citation. MCL 257.728e. However, if the accused pleads not guilty to a misdemeanor, a sworn complaint must be filed with the court before any further proceedings may be conducted. MCL 257.728e. “A warrant for arrest shall not issue for an offense [charged in the citation] until a sworn complaint is filed with the magistrate.” MCL 257.728e.

“[N]ot all appearance tickets or citations are considered sworn complaints under the Michigan Vehicle Code or the Code of Criminal Procedure, and not every appearance before the magistrate necessarily is preceded by the issuance of a complaint.” City of Plymouth v McIntosh, 291 Mich App 152, 162 (2010). “This procedure, . . . is designed to ensure that, following a plea of not guilty, until the magistrate has in front of him or her either a sworn complaint or a citation that takes the place of a sworn complaint, further proceedings do not occur.” Id. Where an appearance ticket is issued for a misdemeanor violation and is in the form of a “Uniform Law Citation” containing the language, “‘I declare under the penalties of perjury that the statements above are true to the best of my information, knowledge, and belief,’” it constitutes a sworn complaint under MCL 257.727c, MCL 764.1e, and MCR 6.615. City of Plymouth, 291 Mich App at 153-154, 154 n 1, 163. A prosecutor is not required to file a second sworn complaint in order to proceed on a not guilty plea. Id. at 163.¹⁰ 

C.Failure to Appear

“Except as provided in MCR 6.615(B), if a defendant fails to appear in court, the court must wait 48 hours, excluding weekends and holidays if the court is closed to the public, before issuing a bench warrant to allow the defendant an opportunity to voluntarily appear before the court.” MCR 6.103(A). See also MCL 764.3(1). “If the defendant does not appear within 48 hours, the court must issue a bench warrant unless the court believes there is good reason to instead schedule the case for further hearing.” MCR 6.103(A)(3). See also MCL 764.3(1). “The court must not revoke a defendant’s release order or forfeit bond during the 48-hour period of delay before a warrant is issued.” MCR 6.103(C). See MCL 764.3(2). However, MCR 6.103(A) does not apply if “the defendant previously failed to appear in the case.” MCR 6.103(A)(1).

MCR 6.103(A)(2) permits a court to “immediately issue a bench warrant only if the court has a specific articulable reason, stated on the record, to suspect any of the following apply:

(a) the defendant has committed a new crime.

(b) a person or property will be endangered if a bench warrant is not issued.

(c) prosecution witnesses have been summoned and are present for the proceeding.

(d) the proceeding is to impose a sentence for the crime.

(e) there are other compelling circumstances that require the immediate issuance of a bench warrant.” See also MCL 764.3(3).

MCR 6.103 “does not abridge a court’s authority to issue an order to show cause, instead of a bench warrant, if a defendant fails to appear in court.” MCR 6.103(B).

MCR 6.615(B) provides that “[i]f a defendant fails to respond to any matter pending relative to a misdemeanor citation issued under MCL 764.9c, the court shall issue an order to show cause.” MCR 6.615(B). “The court may immediately issue a bench warrant, rather than an order to show cause, if the court has a specific articulable reason to suspect that any of the following apply and states it on the record:

(a) the defendant has committed a new crime.

(b) the defendant’s failure to appear is the result of a willful intent to avoid or delay the adjudication of the case.

(c) another person or property will be endangered if a warrant is not issued.” MCR 6.615(B)(1). See also MCL 764.3(4).

“If a defendant fails to appear or otherwise respond to any matter pending relative to a misdemeanor traffic citation, the court must also initiate the procedures required by MCL 257.321a.”¹¹ MCR 6.615(B)(2).

D.Restrictions on the Issuance of Citations

MCL 257.728(1) prohibits the issuance of citations for the following offenses¹²:

•Leaving the scene of an accident resulting in serious impairment of body function or death. MCL 257.617.

•Failing to give the proper information and aid after an accident. MCL 257.619.

•Committing a moving violation causing death or serious impairment of a body function to another person under MCL 257.601d. MCL 257.727(a).

•Operating a vehicle while intoxicated, visibly impaired, with any bodily alcohol content if under age 21, or while having a controlled substance in his or her body under MCL 257.625(1), MCL 257.625(3), MCL 257.625(6), or MCL 257.625(8), or a substantially corresponding ordinance. MCL 257.727(b).

•Causing death or serious impairment of a body function by operating a vehicle while intoxicated or visibly impaired, or while having a controlled substance in his or her body, MCL 257.625(4)-257.625(5). MCL 257.727(b).

•Operating a vehicle while intoxicated or visibly impaired, with any bodily alcohol content if under age 21, or while having a controlled substance in his or her body, and having occupants under age 16 in the vehicle, MCL 257.625(7). MCL 257.727(b).

•Reckless driving, MCL 257.626, or a substantially corresponding ordinance, unless the officer deems that issuing a citation and releasing the person will not constitute a public menace. MCL 257.727(c).

•Not having in his or her immediate possession at the time of arrest a valid operator’s or chauffeur’s license, MCL 257.311, or a receipt for an already surrendered license, MCL 257.311a. However, if the officer can satisfactorily determine the identity of the person and whether the person can be apprehended if he or she fails to appear before the designated magistrate, the officer may issue a citation. MCL 257.727(d).

E.Summons

•As an alternative to filing an order for a warrant after an arrest, the prosecutor may issue a written order for a summons addressed to the accused person under MCL 764.9a(1). See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Volume 1, Chapter 3, for more information on summons to appear in misdemeanor cases.

F.Arraignment

MCL 257.727 provides:

“If a person is arrested without a warrant in any of the following cases, the arrested person shall, without unreasonable delay, be arraigned by the magistrate who is nearest or most accessible within the judicial district as provided in . . . MCL 764.13, or, if a minor, taken before the family division of circuit court within the county in which the offense charged is alleged to have been committed:

(a) The person is arrested under [MCL 257.601d].

(b) The person is arrested under [MCL 257.625(1), MCL 257.625(3), MCL 257.625(4), MCL 257.625(5), MCL 257.625(6), MCL 257.625(7), or MCL 257.625(8)], or an ordinance substantially corresponding to [MCL 257.625(1), MCL 257.625(3), MCL 257.625(6), or MCL 257.625(8)].

(c) A person is arrested under [MCL 257.626] or an ordinance substantially corresponding to [MCL 257.626]. If under the existing circumstances it does not appear that releasing the person pending the issuance of a warrant will constitute a public menace, the arresting officer may proceed as provided by [MCL 257.728].

(d) A person arrested does not have in his or her immediate possession a valid operator’s or chauffeur’s license or the receipt described in [MCL 257.311a]. If the arresting officer otherwise satisfactorily determines the identity of the person and the practicability of subsequent apprehension if the person fails to voluntarily appear before a designated magistrate or the family division of circuit court as directed, the officer may release the person from custody with instructions to appear in court, given in the form of a citation as prescribed by [MCL 257.728].”