Michigan treats criminal contempt of court as a separate misdemeanor created by statute. According to the statute, one guilty of contempt is subject to criminal sanctions which can include up to 93 days in jail. Further, a court can impose probation, community service, and all other criminal sanctions permitted by statute.
Determine whether you are being brought to court on a probation violation or a contempt of court charge.
This can be accomplished in a number of ways. First, look at the notice you have received from the court. If it says that you have been "ordered to show cause" why you should not be held in contempt of court, that is a good indicator that you have been charged with contempt, rather than a simple probation violation. Also, call the court clerk and they should be able to clarify whether the charge is a probation violation or a contempt of court.
Motion to Dismiss
Although many district court judges would argue with this proposition, Michigan law suggests that criminal contempt is not the legal vehicle that should be used when somebody is accused of violating their probation. With the right motion, many Michigan judges may dismiss the show cause case because of this. Therefore your lawyer needs to file this motion.
Winning a Contempt Trial
Contempt charges differ from probation violations for a number of reasons. Most importantly, a contempt charge carries a higher burden of proof than a probation violation. Specifically, the prosecutor has to prove beyond a reasonable doubt that the defendant "willfully" violated the Court's order. "Willfulness" implies a deliberate or intended violation, rather than an accidental, inadvertent, or negligent violation.
This basically means that the prosecutor has to show that the defendant intended to circumvent the Court's order. Most of the time, simply sleeping through a drug or alcohol test is not "willful" intent necessary for a contempt conviction. Because of this, I usually take these cases to trial with very good results.
If you lose your trial
Unfortunately Michigan case law suggests that a defendant in an indirect contempt criminal proceeding is not entitled to a jury trial, rather they have to be tried before the judge to which the contempt is alleged. Because of this, occasionally the judge will find "willfulness" in situations where this element is clearly not present. If this happens, an administrative stay of sentence should be requested and an immediate appeal should be filed.
A major problem with contempt conviction is the court's use of jail and other criminal sanctions when the underlying charge does not carry the possibility of jail. Michigan law and other jurisdictions as well suggest that in indirect criminal contempt cases, a court can only sentence a defendant to what they could have been sentenced to on the underlying offense. Therefore, in the event that jail is used for a non-jailable offense like an MIP, the court may be unlawfully incarcerating the defendant. An immediate appeal of the sentence must be filed to the circuit court with an emergency motion for an administrative stay of the sentence pending appeal. I have been successful in the past with getting MIP violators out of jail using this technique.
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