Rebuttable Presumption Against Jail and Probation on Most Misdemeanors

Michigan has a rebuttable presumption against jail and probation for all but the most serious misdemeanors. You risk an avoidable jail sentence without a lawyer fighting to protect you.

Steer clear of jail on a misdemeanor case.

A misdemeanor is a criminal offense in Michigan that can carry up to one year in jail and up to two (2) years of probation. While many judges in the stricter district courts in Michigan routinely sentence defendants to jail and probation, updates in the law give defendants new hope of avoiding a harsh sentence. Under a new law passed in Michigan on December 30, 2020, judges are not to impose a misdemeanor jail sentence or probation for non-serious misdemeanors. The new law should help defendants avoid a misdemeanor jail sentence.

Serious Misdemeanors

A Michigan judge’s authority to impose a jail or probation sentence for serious misdemeanors remains unchecked and unrestrained. Most serious misdemeanors carry a maximum jail sentence of 93 days or one year in jail. Serious misdemeanors, as specified under Michigan statute, include the following:

assault and battery
domestic violence
assault; infliction of serious injury
aggravated domestic violence
breaking and entering or illegal entry
child abuse in the fourth degree
contributing to the neglect or delinquency of a minor
using the internet or a computer to make a prohibited communication
intentionally aiming a firearm without malice
discharge of a firearm intentionally aimed at a person
discharge of an intentionally aimed firearm resulting in injury
indecent exposure
stalking
injuring a worker in a work zone
leaving the scene of a personal injury accident
operating a vehicle while under the influence of or impaired by intoxicating liquor if the violation involves an accident resulting in damage to another individual’s property or physical injury or death to another individual
selling or furnishing alcoholic liquor to an individual less than 21 years of age if the violation results in physical injury or death to any individual
operating a vessel while under the influence or impaired if the violation involves an accident resulting in damage to another individual’s property or physical injury or death to any individual.

Jail and Probation are Discouraged for Non-Serious or Ordinary Misdemeanors

When a judge imposes a sentence for a misdemeanor offense that is not designated as a “serious misdemeanor,” jail and probation are discouraged but not prohibited. If a judge wants to impose a non-serious misdemeanor jail sentence, the judge must clearly state why such a harsh punishment is necessary. In fact, there is a rebuttable presumption that jail and probation should not be ordered for any non-serious misdemeanor. A defendant’s best hope to avoid a misdemeanor jail sentence is with a lawyer familiar with the latest laws and not afraid to stand up and fight for their client at sentencing. Examples of non-serious misdemeanors include:

Retail Fraud (Shoplifting)
Disorderly Conduct
Driving on a Suspended License
Larceny Under $200 or Under $1,000
Embezzlement Under $200 or Under $1,000
Reckless Driving
Minor drug use and possession charges
Reckless Discharge of a Firearm
Possession of a Firearm While Intoxicated
Malicious Destruction of Property Under $200 or Under $1,000
Leaving the Scene of a Traffic Accident
Trespassing, and many more

Rebuttable Presumption Against Jail and Probation

The Court may depart from the presumption against jail and probation if the Court finds reasonable grounds for the departure and states the reasons for the departure on the record. Requiring a judge to state “reasonable grounds” to impose jail or probation is not a high burden. Because of the decades-long practice of routinely sentencing defendants to jail and probation, it will take some time and top criminal defense advocacy to persuade a judge to order a lenient sentence.

Defendants Who Violate Probation Face a Misdemeanor Jail Sentence

If possible, a criminal defendant convicted of a misdemeanor would want to avoid a misdemeanor jail sentence and probation. When a defendant is ordered to serve a term of probation on a misdemeanor, the judge will order the defendant to comply with complex and demanding rules. Terms and conditions of probation might include mandatory therapy, education (drug, alcohol, theft, etc.), tether, full-time work or school, curfews, drug and alcohol testing, travel restrictions, a prohibition against firearm possession, periodic reporting, and many more. If defendants fail to follow the judge’s order perfectly, they are subject to a contempt charge. A conviction for Contempt of Court can result in jail and additional probation.

Frequently Asked Questions

How do you avoid jail sentences?

The best way to avoid jail is to avoid charges in the first place. If you are charged, a good lawyer might be able to get the charges dismissed or negotiate for reduced charges or a lenient sentence. Engaging in early and meaningful rehabilitation efforts can be a powerful tool when advocating for a reduced sentence or avoiding jail.

What is the most jail time for a misdemeanor?

A misdemeanor is an offense punishable by one year or less.

Can you go to jail in Michigan for a misdemeanor?

Yes, you can go to jail for up to the maximum sentence prescribed by law for that offense. Most misdemeanors are punishable by up to 90, 93,180 days, or one year.

What factors do judges consider when sentencing?

Judges consider several factors at sentencing, such as the seriousness of the offense, the offender’s background, any prior criminal history, and any efforts by the offender to rehabilitate before sentencing.

What are ways to prevent from going to jail?

A great criminal defense lawyer will take the time to get to know their client and develop a strategy to reduce or eliminate jail time in a misdemeanor case.

Can you avoid jail with money?

Payment of money can help a defendant avoid jail; however, someone cannot buy their way out of a jail sentence. For example, if restitution is paid to the victim early in a case, a judge might consider that as a mitigating factor.

What can I do to stay out of jail?

The best way to avoid a misdemeanor jail sentence is to follow your lawyer’s advice, stay out of trouble, and take measures to improve your life (therapy, AA, community service, etc.).

What are the most common penalties for misdemeanors?

In addition to jail, probation is frequently ordered for misdemeanor offenders. Probation can include an order to stay out of trouble, avoid police contact, maintain employment or an education, drug and alcohol treatment, educational programs, therapy, etc.

Lawyers with a Track Record of Preventing Misdemeanor Jail Sentences

The Defense Team with LEWIS & DICKSTEIN, P.L.L.C. has an unparalleled track record of persuading judges to consider lenient sentences for misdemeanor offenses. Our lawyers have crafted highly effective sentencing arguments through decades of highly effective criminal defense. Although no lawyer can ethically promise or guarantee any result, our team can promise to do everything possible and fight tenaciously to help our clients avoid harsh sentences. Call us for a free consultation if you face criminal charges in Michigan. We will take the time to talk with you, answer your questions, and work with you to develop a winning strategy. We will find a way to help you!

Call us today at (248) 263-6800 for a free consultation or complete an online Request for Assistance Form. We will contact you promptly and find a way to help you.