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Can you score an assault and battery as a prior misdemeanor if the case was granted the Spousal Abuse Act?

Your specific question has not been addressed by any binding legal authority and it is a question of law to be decided by the judge. However, assuming the defendant’s prior misdemeanor was dismissed under MCL 769.4a, it is likely that it should not be counted under PRV 5. PRV 5 requires a qualifying conviction in order for points to be assessed. Conviction, as the term is used by all the PRVs, is defined by MCL 777.50(4)(a) as including an assignment to youthful trainee status under MCL 762.11 to MCL 762.15 and a conviction set aside under MCL 780.621 to MCL 780.624. Because dismissal under MCL 769.4a is not included in the definition of conviction, the domestic violence offense that was dismissed under MCL 769.4a likely does qualify as a conviction for purposes of PRV 5. Further, MCL 769.4a(5) specifically states that “[u]pon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against the person. Discharge and dismissal under this section must be without adjudication of guilt and is not a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime[.]” Finally, while nonbinding, two unpublished decisions of the Michigan Court of Appeals have held that a domestic violence matter discharged under MCL 769.4a is not a prior misdemeanor conviction under PRV 5. See People v Watson, unpublished per curiam opinion of the Michigan Court of Appeals, issued December 10, 2020 (Docket No. 349242), p 10; People v Wooten, unpublished per curiam opinion of the Michigan Court of Appeals, issued October 29, 2015 (Docket No. 321600), p 7.

Tags: PRV 05

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