Expungement

MICHIGAN’S EXPUNGEMENT LAW: WHO NOW QUALIFIES FOR EXPUNGEMENT?

Gov. Whitmer signed the bipartisan "Clean Slate" initiative into law on Oct. 12th, 2020, marking a historic moment for Michigan's criminal conviction and expungement laws. These seven house bills will allow thousands of Michiganders to remove felony and misdemeanor convictions from their records, including misdemeanor marijuana offenses.

The new act takes effect on April 12th, 2021, while the automatic expungement statute becomes effective on Oct. 12th, 2022.

WHAT CAN BE SET ASIDE/EXPUNGED FROM YOUR RECORD?

Under this statute, an individual can request to have up to 3 eligible felony offenses and an unlimited number of eligible misdemeanors expunged. The term "felony" encompasses any crime that carries a punishment of over 1 year imprisonment or is classified as a felony. If the maximum penalty for a crime was 10 years or more, only one felony of that specific crime can be expunged. In cases where multiple felonies or misdemeanors occur within 24 hours and stem from the same incident, they are treated as a single felony or misdemeanor (MCL 780.621b).

THE FOLLOWING OFFENSES CANNOT BE EXPUNGED OR SET ASIDE:

Life maximum offenses, or attempts to commit them
Child Abuse in the 2nd Degree, or attempt (MCL 750.136b or 750.136d)
Child Sexually Abusive Activity or Material (any level), or attempt (MCL 750.145c)
Using a Computer to Commit a Crime for certain offenses, or attempt (MCL 750.145d)
Criminal Sexual Conduct (CSC) in the 2nd or 3rd Degree, Assault CSC, or attempt (MCL 750.520c, 520d, 520g)
CSC in the 4th Degree if committed in 2015 or later (MCL 750.520e) (for CSC 4 prior to 2015, see MCL 780.621(1)(d))
Operating While Intoxicated (MCL 780.621(1)(g)) - Any Commercial Driver’s License offense (MCL 780.621c(1)(d)(ii))
Any traffic violation that causes death or injury (MCL 780.621c(1)(d)(iii))
Felony domestic violence if applicant also has a prior misdemeanor DV conviction (MCL 780.621c(1)(e))
Forced labor, debt bondage, human trafficking (MCL 750.462a-h)

No more than TWO assaultive crimes may be set aside in a person’s lifetime, whether they are felony or misdemeanor.
Assaultive crimes are as follows:

Assault and Battery; Domestic Violence; Aggravated Assault; Aggravated DV; Resisting & Obstructing a DHHS Worker, Police Officer, or Utility Worker; Felonious Assault; Assault with Intent to Murder; Assault with Great Bodily Harm/Strangulation; Torture; Assault with Intent to Maim; Assault Other Felony; Assault with Intent to Rob Unarmed; Assault with Intent to Rob Armed; Sexual Intercourse Under Pretext of Medical Treatment; Assault of a Pregnant Individual/Miscarriage; related statutes (MCL 750.81-90h)
Explosives, bomb making crimes (MCL 750.200-212)
First- or second-degree murder, Manslaughter (MCL 750.316, .317, .321)
Kidnapping or Unlawful Imprisonment (not parental kidnapping) (MCL 750.349, .349a)
Home Invasion (any degree) (MCL 750.110a)
Child Abuse (any degree) (MCL 750.136b)
Intentional Discharge of a Firearm from a Motor Vehicle, at Dwelling, at Emergency Vehicle (MCL 750.234a, b)
Child Enticement (MCL 750.350)
Mayhem (MCL 750.397)
Stalking or Aggravated Stalking (MCL 750.411h, .411i)
Criminal Sexual Conduct 1st-4th Degree, Assaultive CSC (MCL 750.520b-g)
Armed Robbery, Unarmed Robbery, Carjacking (MCL 750.529, .529a)
Terrorism (MCL 750.543a-z)
Another state or local law (not federal) corresponding to those listed

Human trafficking still has its own terms for a person looking to set aside certain prostitution related offenses (MCL 780.621(3))

WHEN CAN YOU SEEK A SET ASIDE/EXPUNGEMENT?

To set aside multiple felonies, you must wait at least 7 years after completing your last sentence (probation, parole, or incarceration).
For a single felony, the waiting period is at least 5 years after sentence completion.
If you wish to set aside one or more serious misdemeanors, the waiting period is also 5 years after your last sentence.
For non-serious misdemeanors or assaultive misdemeanors, the waiting period is at least 3 years after sentence completion.
Regarding assaultive misdemeanors, while there is no specified waiting period in the law, it's important to note that every assaultive misdemeanor qualifies as a serious misdemeanor.

Need Help? CALL TODAY!

HOW DO YOU GET A CONVICTION SET ASIDE/EXPUNGED?

STEP 1: Complete and sign your application

An application can be found and filled out at:
https://courts.michigan.gov/administration/scao/forms/courtforms/mc227.pdf

Tips:

You may need to check ICHAT to know what is on your criminal record (there is a fee for requesting this through the Michigan State Police; search ICHAT on michigan.gov)
You will likely want to check local court websites to verify if any other convictions exist
Do not sign the completed application until you have a notary or court clerk witness your signature. You will need a photo ID to show them.

STEP 2: Get fingerprinted, and get certified copies of your convictions.

Fingerprints: You can go to any police station or Michigan State Police post to have your
fingerprints taken. There will be a cost. Make sure that the prints are taken on an RI-009 card. You
will need to submit this fingerprint card to the Michigan State Police along with a copy of your
application.

Copies of Convictions: You need to order a certified copy of each of your convictions from the
court where you were convicted. There will be a cost. These may also be called a judgement of
sentence, abstract of conviction, or record of action.

STEP 3: File your application with your certified copy of conviction(s).

Make five copies of your application and your certified record of conviction. Take all five documents to the court clerk.
File the documents IN THE COURT WHERE YOU WERE CONVICTED. If you have convictions you wish to set aside in more than one court, you will need to file more than one application – one application in each court of conviction.
Check with the court to see what the filing process is, as each court is different and you need to file your documents as the specific court requires. Call the court clerk’s office to find out their filing requirements.
You should get a date for a hearing to set aside about 4 months out, depending on the court.

STEP 4: Serve your application on the prosecutor, Attorney General, and Michigan State Police.

Only send your documents to them AFTER you get your hearing information from the court clerk.

Prosecutor and Michigan Attorney General: Mail a copy of your application and record of conviction to the prosecutor’s office in the county in which you were convicted. Each county has their own office of the prosecuting attorney; if you do not know the name or the address of the office it can be found online at: https://www.michiganprosecutor.org/about-us-menu/prosecutor-directory. The address of the Attorney General can be found there as well.
Michigan State Police: Mail one copy of your application, record of conviction, and fingerprint card to MSP. You must also include the application fee of $50.00, payable by check or money order. The fee is only paid to MSP; there is no fee to be paid to the prosecutor’s office or the Attorney General. The documents should be sent by first class mail to:

Michigan State Police, CJIC
P.O. Box 30266
Lansing, MI 48909

TIP: After sending your documents to all three, make sure to fill out the PROOF OF SERVICE
section on your remaining copy and send this to the court clerk to show that you have sent your
documents to the required agencies. Keep one copy for your records.

STEP 5: The hearing

At the hearing, you have the opportunity to show the judge why your conviction(s) should be set
aside. It is a good idea to have documentation to support your request, something short so the judge
can examine it relatively quickly. These documents can also be sent to the court any time before
the hearing date, so the judge can review the documents in advance.

Setting aside a conviction is not automatic. Under the law, it is defined as a privilege and is
conditional, not a right. You must convince the court that your circumstances and behavior from
the date of your conviction(s) warrant setting aside the conviction(s), and that setting aside the
conviction(s) is consistent with the public welfare.

Some ideas to prepare for presentation to the judge to show your convictions should be set aside
are:

Your employment history since you were released/discharged from probation/parole;
Letters of support from friends, family, employers, and volunteer organizations you are involved in;
Any substance abuse treatment certificates, or participation in treatment activities;
A statement on how removing your conviction will reduce barriers to school, work, or housing opportunities;
A personal statement on how your life has changed since your conviction;
Anything you think will convince the judge that removing your past convictions is consistent with the public welfare.

TIPS:

A court “shall not” act on the application without the required Michigan State Police report, so you need to make sure MSP is mailed your application in a timely manner and the hearing date is far enough in the future to allow MSP to respond; otherwise your hearing will be delayed.
The prosecutor and the Michigan Attorney General must be served by mailing your application to their offices. Notice to victims is required if the conviction is for an assaultive crime or serious misdemeanor, and the victim has the right to appear and make a written or oral statement.
Bring a copy of a blank Order to Set Aside Conviction to the hearing. This can be found at: https://www.courts.michigan.gov/news-releases/scao-communications/2021/new-and-revised-forms-for-set-aside-of-adult-convictions/

Step 6: After the hearing:

If your application is granted: the judge should complete and sign the Order to Set Aside
Conviction and you will be given a copy of the order. Ask if court clerk will send a copy to local
police and Michigan State Police. If the court clerk does not send a copy to the police agencies,
you must send a copy to both the local police and the Michigan State Police via first class mail.

If your application is denied: you must wait 3 years before filing for a set aside again unless the
court orders less time

The new law includes automatic expungements for certain felonies and misdemeanors, eliminating the need for a formal application in many cases. However, understanding this complex law can be challenging. Below is a comprehensive summary of the new law, beneficial for both expungement attorneys in Michigan and individuals seeking expungement.

SEALING A CRIMINAL RECORD VS. EXPUNGEMENT:
WHAT’S THE DIFFERENCE?

The term "sealing" refers to the process of hiding a person's criminal record. Unlike expungement, which completely erases a conviction from the record, sealing only creates the illusion that the conviction has been cleared. Even if a record is sealed, it still legally and physically exists but is not easily accessible to the public.

It's important to note that even with a sealed record, it can still be obtained through criminal background checks for employment, insurance, and other purposes. This is why expungement is highly recommended as it is the most effective and preferred method to ensure a clean record.

CHANGE IN CURRENT MICHIGAN EXPUNGEMENT LAW

Michigan's new expungement law follows the typical process, requiring eligible individuals to demonstrate to the court that issued the conviction their worthiness for expungement. This evaluation is based on their actions from the date of conviction until the petition date.

The expanded law now enables more people to be eligible, thanks to an increased number of permissible felony and misdemeanor offenses, as well as a reduced waiting period. Previously, individuals could set aside a felony if they had no more than one felony and two misdemeanors. They could also expunge one or both misdemeanor charges if they had no more than two misdemeanors.

Under the new law, a person with no more than three felony offenses can apply to have any or all of those convictions set aside. However, there are exceptions, such as not being able to expunge more than two assaultive crime convictions (felony or misdemeanor) or any violent felony record during their lifetime.

Additionally, if a felony offense is punishable by more than 10 years, only one conviction for the same offense can be set aside.

The minimum time periods for eligibility are as follows:

Seven or more years to apply for setting aside multiple felony convictions.
Five or more years to set aside a single felony conviction or one or more serious misdemeanors.
Three or more years to set aside a misdemeanor, excluding serious misdemeanors or misdemeanor convictions for an assaultive crime.

The applicable time period starts from the latest of the following dates:

Placement of the sentence for the conviction being sought for expungement.
Completion of probation or discharge from parole for the conviction being sought for expungement.
Completion of any term of imprisonment for the conviction being sought for expungement.

MANY TRAFFIC OFFENSES ARE NOW ELIGIBLE

Under Michigan's previous expungement law, traffic offenses were not eligible for expungement. However, most traffic offenses are now eligible for expungement, with a few exceptions:

Second or subsequent convictions for operating while intoxicated or impaired (OWI, "drunk driving")
Traffic offenses committed by individuals holding a CDL endorsement while operating a commercial vehicle
Traffic offenses that caused death or serious bodily injury

On December 16th, 2020, the Michigan Senate approved bills to further expand expungement eligibility. This includes allowing individuals with first-time drunken driving convictions to have their records cleared. However, subsequent drunken driving offenses or convictions involving injury or death cannot be expunged.

It's important to note that setting aside a conviction for a traffic offense does not require the removal or expungement of the conviction from the applicant's driving record under the Secretary of State (SOS). The offense will still remain on the applicant's driving record.

MULTIPLE FELONIES COMMITTED AT THE SAME TIME NOW COUNT AS ONE

Previously, two felony convictions were ineligible for expungement. However, under the new law, two or more felony convictions are counted as one if they occurred within 24 hours of each other and were part of the same circumstance. This provision will provide relief to many individuals.

However, this provision does not apply to the following:

Assaultive crimes (both out-of-state and in-state)
Crimes involving the possession or use of a dangerous weapon
Crimes punishable by 10 years or more

SB681, approved by the Michigan Senate on December 16th, 2020, aims to create a process for automatically setting aside certain offenses for youth who maintain good behavior and sealing their juvenile court records from public view. Currently, individuals with juvenile records must wait until they are at least 18 to apply for expungement. This bill removes the age requirement and allows individuals to apply for expungement one year after their court supervision ends. It also expands eligibility to include traffic offenses, which are currently not eligible under the existing juvenile expungement law.

Automatic expungement without an application will take effect either two years after the end of a juvenile's court supervision or when they turn 18, whichever happens later.

AUTOMATIC EXPUNGEMENT

One significant change to the current Michigan expungement statute is the addition of automatic expungement for both felonies and misdemeanors. However, there are various conditions, exceptions, and exclusions to this provision. To allow time for the implementation of this system, automatic expungements will not begin until October 12th, 2022.

Under this new provision, a felony conviction will be set aside without the need for an application if ten (10) years have passed, while a misdemeanor conviction will be set aside if seven (7) years have passed since the last of the following events occurred: the imposition of the sentence or the completion of any term of imprisonment for the conviction.

There are some conditions to the automatic expungement process. Firstly, no more than two (2) felonies or four misdemeanors can be automatically expunged during an individual's lifetime. Secondly, a conviction cannot be automatically set aside unless the required time period has elapsed, there are no pending criminal charges against the applicant, and the applicant has not been convicted of any crime during the required time period.

Certain exclusions apply to automatic expungement eligibility. Individuals with more than one conviction for an assaultive crime are not eligible. Additionally, automatic expungement does not apply to convictions for assaultive crimes, serious misdemeanors, crimes of dishonesty, offenses punishable by 10 or more years of imprisonment, or felonies involving minors, vulnerable adults, injury or serious impairment, death, or any violation related to human trafficking.

EXPUNGEMENT OF MARIJUANA CONVICTIONS:

Since the legalization of recreational marijuana on December 6th, 2018, there is now an opportunity to expunge misdemeanor marijuana offenses. Individuals convicted of one or more marijuana offenses can now file an application to have them set aside. Once filed, there is a reasonable presumption that the offense would have been lawful after December 6th, 2018.

The prosecuting agency responsible for the case has 60 days to object. If they do object, a hearing will be held to prove that the conduct leading to the conviction is still a criminal violation. It's important to note that being in possession of or cultivating up to two times the permissible amount is considered a civil infraction, not a criminal conviction.

Therefore, if someone was previously charged with the felony of growing 24 plants or less but had the offense pleaded down to a misdemeanor, it is eligible for expungement. The prosecution cannot rebut the presumption because growing up to 24 plants, although twice the permissible amount, is considered a civil infraction under the Michigan Regulation and Taxation of Marijuana Act (MRTMA).

However, it's important to note that this provision does not apply to felony marijuana convictions.

EXCLUDED OFFENSES:
OFFENSES THAT ARE INELIGIBLE FOR EXPUNGEMENT

The following offenses are not eligible for expungement, whether through application or the automatic process:

Felonies or attempts to commit felonies carrying a maximum punishment of life imprisonment.
Violations or attempted violations of criminal sexual conduct (CSC) statutes, except for CSC in the fourth degree as discussed under HB 4984. This includes offenses related to second-degree child abuse or child sexually abusive materials, using a computer to commit various crimes (such as soliciting sex with a minor or stalking), causing death by explosives, or swatting.
Felony convictions for domestic violence if the person has a previous misdemeanor conviction for domestic violence, or violations of Chapter LXVIIA (Human Trafficking) or Chapter LXXXIII-A (Michigan Anti-Terrorism Act) of the Michigan Penal Code.

Automatic expunged charges can be reinstated if an individual fails to make a good faith effort to pay court-ordered restitution, either during their own motion or upon the court's own motion.

MISCELLANEOUS PROVISIONS

Important Details about Expungement and Prior Convictions:

Under the automatic expungement provision, the responsibility to pay restitution remains even when owed to the crime victim. The convicting court still maintains jurisdiction to enforce restitution.

A conviction that has been set aside through the application process, a marijuana misdemeanor offense, or an automatically set-aside conviction may still be considered a prior conviction. This determination can be made by a court, law enforcement agency, prosecuting attorney, or the attorney general (as applicable). It may impact charging a subsequent offense or sentencing under habitual offender statutes.

Furthermore, a conviction and any related records, including those of collateral actions, that have been set aside under the act cannot be used as evidence in a negligent hiring, admission, or licensure case against any individual.

THE TAKEAWAY IN MICHIGAN EXPUNGEMENT

The new law clarifies that expungement remains a privilege, not a right. It will take effect on April 12th, 2021, while the automatic expungement statute will be effective on October 12th, 2022. This represents a significant milestone in Michigan's criminal justice reform and deserves recognition.