16.23​Technical Probation Violation

For purposes of subchapters 6.000-6.800 of the Michigan Court Rules, technical probation violation “means any violation of the terms of a probation order, including missing or failing a drug test, excluding the following:

(a) A violation of an order of the court requiring that the probationer have no contact with a named individual.

(b) A violation of a law of this state, a political subdivision of this state, another state, or the United States or of tribal law, whether or not a new criminal offense is charged.

(c) The consumption of alcohol by a probationer who is on probation for a felony violation of MCL 257.625.

(d) Absconding, defined as the intentional failure of a probationer to report to his or her supervising agent or to advise his or her supervising agent of his or her whereabouts for a continuous period of not less than 60 days.” MCR 6.003(7).

“A probationer may acknowledge a technical probation violation in writing without a hearing before the court being required.” MCL 771.4b(2).“Subject to the exception in [771.4b(6)¹⁰²], the court shall not revoke probation on the basis of a technical probation violation unless a probationer has already been sanctioned for 3 or more technical probation violations and commits a new technical probation violation.” 771.4b(4).

“[T]here is a rebuttable presumption that the court shall not issue a warrant for arrest for a technical probation violation and shall issue a summons or order to show cause to the probationer instead.” MCL 771.4b(7). A warrant may be issued if the court overcomes the presumption by stating on the record “a specific reason to suspect” that the probationer (1) “presents an immediate danger to himself or herself, another person, or the public”; (2) has left court-ordered inpatient treatment without permission; or (3) has already failed to appear after being issued a summons or order to show cause. Id.

When a probationer is arrested and detained for a technical probation violation hearing, the hearing must be held “as soon as is possible,” and “[i]f the hearing is not held within the applicable and permissible jail sanction, as determined under [MCL 771.4b(1)(a)-(b)], the probationer must be returned to community supervision.” MCL 771.4b(8).

Technical probation violations do not include “[a] violation of an order of the court requiring that the probationer have no contact with a named individual.” People v Smith, ___ Mich App ___, ___ (2024). In Smith, “[a]fter defendant pleaded guilty to violating his probation order requiring him to not have physical contact with anyone under the age of 17, the trial court found that defendant committed a ‘nontechnical’ probation violation . . . .” Smith, ___ Mich App at ___ (considering “whether the trial court erred by finding that defendant committed a nontechnical violation of his probation order”). However, “defendant’s probation order [did] not name an ‘individual,’ and describing a class of persons [did] not fall within the clear words of the statute.” Id. at ___, quoting MCL 771.4b(9)(b)(i).

The Smith Court first noted that its “judicial duty is to enforce the language utilized by the Legislature to accomplish its policy goals, and there is no wiggle room in the language employed in MCL 771.4b(9)(b)(i).” Smith, ___ Mich App at ___. The Court next noted that “the prosecution [did] not specify how MCL 771.4b(9)(b)(i) present[ed] an irreconcilable conflict with another statutory provision.” Smith, ___ Mich App at ___. “MCL 771.4(2) specifically provides that all probation orders are revocable subject to the requirements of section 4b of this chapter, and continues that revocation of probation, and subsequent incarceration, should be imposed only for repeated technical violations, for new criminal behavior, as otherwise allowed in section 4b of this chapter, or upon request of the probationer.” Id. at ___ (cleaned up) (concluding that “[b]ecause MCL 771.4b(7)(a) presents no conflict with other provisions of MCL 771.4b, it provides no basis for deviating from the legislative intent expressed by the plain language of MCL 771.4b(9)(b)(i)”). Lastly, the Court “reject[ed] the prosecution’s argument that the use of ‘should’ rather than ‘shall’ within MCL 771.4(2) . . . indicates that probation revocation need not necessarily follow from the bases specified.” Smith, ___ Mich App at ___.

“However, despite the permissive language, the Legislature continued to incorporate the definitions and restrictions regarding technical violations found in MCL 771.4b. Smith, ___ Mich App at ___. Thus, there is no statutory ambiguity allowing construction of MCL 771.4b(9)(b)(i) in any way other than recognizing that its plain language renders defendant’s violation of the no-contact order a technical one.” Smith, ___ Mich App at ___. “Because MCL 771.4b(9)(b)(i) unambiguously provides that a violation of a no-contact provision in a probation order is nontechnical only when the no-contact order pertains to a named individual,” the Smith Court held “that it was error for the trial court to conclude that the Legislature intended defendant’s violation of the probation order prohibiting contact with a broad class of persons to be ‘nontechnical.’” Id. at ___.

“In lieu of initiating a probation violation proceeding under MCR 6.445, the court may allow a probationer to acknowledge a technical probation violation without a hearing.” MCR 6.450(A).

Required advice. “The acknowledgment must be in writing and advise the probationer of the following information

(1) the probationer has a right to contest the alleged technical probation violation at a formal probation violation hearing;

(2) the probationer is entitled to a lawyer’s assistance at the probation violation hearing and at all subsequent court proceedings, and that the appointing authority will appoint a lawyer at public expense if the probationer wants one and is financially unable to retain one;

(3) the court will not revoke probation or sentence the probationer to incarceration as a result of the acknowledgment, but the court may continue probation, modify the conditions of probation, or extend probation;

(4) if the probationer violates probation again, the court may consider the acknowledgment a prior technical probation violation conviction for the purposes of determining the maximum jail or prison sentence and probation revocation eligibility authorized by law;

(5) acknowledging a technical probation violation may delay the probationer’s eligibility for an early discharge from probation.”¹⁰³ MCR 6.450(A).

See also SCAO Form MC 521, Technical Probation Violation Acknowledgment.