Accused of Violating Probation in Michigan? Why the Rules Are Different

The call usually starts with something small. A missed drug test. A payment that did not go through. A probation officer who said, "come in Monday, we need to talk." People assume that because nothing serious happened, nothing serious can happen. Then they learn that a probation violation runs on its own rules, and that most of the protections they had the first time through court are gone.

A violation hearing is not a second trial

Granting probation "is a matter of grace," MCL 771.4(1), and all probation orders are revocable. Revocation hearings "must be summary and informal and not subject to the rules of evidence or of pleadings applicable in criminal trials." MCL 771.4(2).

The prosecutor’s burden is "by a preponderance of the evidence," not beyond a reasonable doubt, and the court "need not apply the rules of evidence except those pertaining to privileges" — both from SCAO form MC 446, the advice-of-rights form used at violation arraignments. You do keep real protections: notice, appointed counsel if you cannot afford one, disclosure of the evidence, and the chance to present evidence and cross-examine witnesses.

Under MCR 6.445(C), a probationer held in custody must get a hearing within the permissible jail sentence for that violation, and in no event more than 14 days after the arrest, or the court must order release pending the hearing.

Michigan treats "technical" violations differently

MCL 771.4b was added in 2017 and rewritten by 2020 PA 397, effective April 1, 2021. It defines a "technical probation violation" as a violation of your probation order that is not on a short exclusion list, and expressly includes "missing or failing a drug test." MCL 771.4b(9)(b).

Four things are not technical violations:

• Violating an order to have no contact with a named person. MCL 771.4b(9)(b)(i).

• Violating any law, "whether or not a new criminal offense is charged." MCL 771.4b(9)(b)(ii).

• Drinking alcohol while on probation for a felony violation of MCL 257.625. MCL 771.4b(9)(b)(iii).

• Absconding: intentionally not reporting, or not telling your agent where you are, for "a continuous period of not less than 60 days." MCL 771.4b(9)(a), (9)(b)(iv).

  
  

For a technical violation, jail is capped per violation: on misdemeanor probation, no more than 5 days for a first, 10 for a second, 15 for a third; on felony probation, no more than 15, then 30, then 45. MCL 771.4b(1)(a)-(b). On a fourth or subsequent violation the caps come off, up to the remaining eligible sentence. Violations arising out of one transaction count as one. MCL 771.4b(5). A sanction can stretch to 45 days if you await treatment placement with no safe place to wait. MCL 771.4b(3).

The statute limits revocation too: a court "shall not revoke probation on the basis of a technical probation violation" unless you have already been sanctioned for three or more and commit another. MCL 771.4b(4).

MCL 771.4b(7) also presumes the court will issue a summons or order to show cause rather than an arrest warrant. It can rebut that only for a specific reason stated on the record: immediate danger, leaving court-ordered inpatient treatment without permission, or failing to appear on a summons already issued. If you are arrested and detained anyway, MCL 771.4b(8) requires a hearing "as soon as is possible," and if it is not held within the permissible jail sanction you "must be returned to community supervision."

One exception you cannot afford to miss. If you are on probation for certain domestic violence or stalking offenses under MCL 750.81, 750.81a, 750.411h, or 750.411i, or an offense involving domestic violence as defined in MCL 400.1501, MCL 771.4b(6) removes both protections above: the jail caps in subsection (1) do not apply, and neither does the revocation limit, because subsection (4) is expressly "[s]ubject to the exception in subsection (6)." A first technical violation can be a revocation. The summons presumption is not carved out.

What the judge can actually do

If the court finds a violation, or you plead guilty to one, MCR 6.445(G) gives four options: continue probation, modify its conditions, extend the probation period, or revoke probation and impose incarceration.

Revocation is the one to understand. "Subject to the requirements of section 4b," MCL 771.4(5) lets a court that revokes probation "sentence the probationer in the same manner and to the same penalty as the court might have done if the probation order had never been made." Where the MCL 771.4b limits do not apply, your exposure is the sentence for the underlying offense, not a penalty scaled to a missed test. The sentencing guidelines are scored for a sentence imposed after revocation. People v Hendrick, 472 Mich 555 (2005).

If the violation is about money

MCL 771.3(8) applies to court-ordered costs, and permits jail or revocation for nonpayment "only if the probationer has the ability to pay and has not made a good-faith effort to comply with the order." It also directs the court to consider your employment status, earning ability, and financial resources. By its terms it does not reach restitution, fines, or assessments.

Federal constitutional law matters here too. In Bearden v Georgia, 461 US 660 (1983), the Supreme Court held that in revocation proceedings for failure to pay a fine or restitution "a sentencing court must inquire into the reasons for the failure to pay," and that where a probationer could not pay despite sufficient bona fide efforts the court must consider alternatives to imprisonment. Bearden turns on fault and effort, not on being broke, but inability to pay is something a court has to hear.

Michigan probation and federal supervision are not the same thing

If you are under federal supervision, MCL 771.4b does not apply to you at all. Federal supervised release revocation runs under 18 USC 3583, federal probation revocation under 18 USC 3565. Under 18 USC 3583(e)(3) a federal court may revoke on a preponderance finding and imprison you for up to five years, depending on the class of the original offense. Under 18 USC 3583(g) the court "shall revoke" for possessing a controlled substance or a firearm, refusing drug testing, or testing positive more than three times in a year, though 18 USC 3583(d) directs the court to weigh available substance abuse treatment as an exception for a failed test. The federal statute has no graduated day caps and no summons presumption. These are separate analyses, and the Michigan protections above do not carry over.

What this means for you

A dismissal does not end your violation. Because the standard is preponderance of the evidence, a court can find you violated probation by breaking the law even if the new case is dropped — MCL 771.4b(9)(b)(ii) counts a violation of law "whether or not a new criminal offense is charged." A good state-court outcome likewise does not prevent a federal revocation on the same conduct.

Admitting is not automatically the quick way out. MCL 771.4b(2) lets you acknowledge a technical violation in writing without a hearing. Sometimes that is sensible, but it gives up the contested hearing and does nothing for a violation that is not technical.

And do not miss a hearing date. Failing to appear on a summons is one of the three grounds for a warrant. MCL 771.4b(7)(c). Bring your proof when you go.

If you are facing a probation violation in Michigan, the time to work out which rules apply is before the hearing, not at it. Scozzari Law, PLLC handles criminal defense in Grand Rapids and across West Michigan, and we are glad to talk about where your case stands. Call our office at (616) 226-4343

to arrange a consultation.

This article is general information about Michigan law and is not legal advice. Reading it does not create an attorney-client relationship with Scozzari Law, PLLC. Michigan law changes, and how it applies depends entirely on the facts of your case. If you have a family law or criminal matter in Kent County or elsewhere in Michigan, talk to a lawyer about your specific situation.