MICHIGAN’S EXPUNGEMENT LAW: WHO NOW QUALIFIES FOR EXPUNGEMENT?
A little over a year after they were first introduced, Gov. Whitmer signed the seven house bills into law that completely change criminal conviction/Michigan expungement laws on Oct. 12th, 2020, known as the “Clean Slate” initiative. This bipartisan legislation is a historic moment for Michigan, as it will permit thousands of Michiganders the opportunity to remove felony and misdemeanor convictions from their records; including misdemeanor marijuana offenses.
This new act becomes effective on April 12th, 2021, with the automatic expungement statute becoming effective on Oct. 12th, 2022.
WHAT CAN BE SET ASIDE/EXPUNGED FROM YOUR RECORD?
A person may seek to have not more than 3 eligible felony offenses, and an unlimited number of eligible misdemeanors, set aside. Additionally: - “Felony” is defined, for this statute, as any crime with a punishment of more than 1 year imprisonment, or designated as a felony - Not more than one felony of the same crime may be set aside if the maximum possible penalty for the crime was 10 years or more - If multiple felonies or multiple misdemeanors occur within 24 hours, and arose from the same transaction, they are all considered only one felony or one 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?
If moving to set aside more than one felony, you cannot file until 7 years after your last sentence ended. (finished probation, parole, or incarceration)
If moving to set aside one felony, it must be at least 5 years after sentence ended.
If moving to set aside one or more serious misdemeanors (see below), it must be at least 5 years after last sentence ended.
If moving to set aside one or more misdemeanors that are not serious misdemeanors or assaultive misdemeanors, then it must be at least 3 years after sentence ended.
There is nothing in the law on when a person can file to have an assaultive misdemeanor set aside, but every assaultive misdemeanor also qualifies as a serious misdemeanor.
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:
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
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
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.
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
What’s also exciting is the automatic expungements of some felonies and misdemeanors, which means that in many cases, an application for expungement does not need to be filed. However, this new law is definitely difficult to understand. Below, you can find a comprehensive summary of the new law, which is helpful to both expungement attorneys in Michigan and all individuals.
SEALING A CRIMINAL RECORD VS. EXPUNGEMENT:
WHAT’S THE DIFFERENCE?
You may have heard the phrase “sealing” a person’s criminal record. While expungement clears a conviction off someone’s criminal record (as if it never happened), sealing a criminal record only gives the appearance that the conviction has been cleared. For instance, if sealed, your criminal record still “exists” both legally and physically; it is just not readily available to the public.
Therefore, even if your record is sealed, it can still be obtained through criminal background checks for employment, insurance, etc. This is why expungement is by far the most necessary and preferred route.
CHANGE IN CURRENT MICHIGAN EXPUNGEMENT LAW
Michigan’s new expungement law maintains the typical process, where a person eligible to have an offense set aside must demonstrate to the court that issued the conviction that they deserve the expungement. This will be done through an evaluation of their actions from the date of conviction until the date of the petition.
Many more people are now eligible due to the expanded number of permissible felony and misdemeanor offenses, as well as a reduction in the number of years passed to become eligible. Previously, Michigan felony expungement law permitted a person with no more than one (1) felony and two (2) misdemeanors to set aside the felony. Additionally, someone with no more than two (2) misdemeanors could expunge one or both of their charges.
Now, a person convicted of one or more criminal offenses, but not more than a total of three (3) felony offenses may apply to have any or all of those convictions set aside. However, there are some exceptions, such as:
An applicant cannot have more than two (2) convictions for an assaultive crime (felony or misdemeanor), or any violent felony record expunged during their lifetime.
An applicant cannot have more than one (1) felony conviction for the same offense to be set aside if the offense is punishable by more than 10 years.
The applicable minimum time periods are as follows:
Seven (7) or more years before applying to set aside more than one felony conviction.
Five (5) or more years to set aside a single felony conviction or one or more serious misdemeanors.
Three (3) or more years to set aside a misdemeanor, other than an application to set aside a serious misdemeanor or any other misdemeanor conviction for an assaultive crime.
The applicable time period begins on the latest date of the following:
Placement of the sentence for the conviction that the applicant seeks to set aside.
Completion of probation or discharge from parole placed for the conviction that the applicant seeks to set aside.
Completion of any term of imprisonment placed for the conviction that the applicant seeks to set aside.
MANY TRAFFIC OFFENSES ARE NOW ELIGIBLE
Michigan’s previous expungement law prevented all traffic offenses from being eligible for expungement. Now, most traffic offenses are now eligible, with the following exceptions:
A 2nd or subsequent conviction for operating while intoxicated or impaired (OWI, “drunk driving”)
A traffic offense committed by a person holding a CDL endorsement while operating a commercial vehicle
Any traffic offense causing death or serious bodily injury
On Dec. 16th, 2020, the Michigan Senate approved several bills that would further expand eligibility for expungement, allowing for people with first-time drunken driving convictions to get their record cleared. It would not permit expungement of subsequent drunken driving offenses or convictions involving injury or death.
Further, an order setting aside a conviction for a traffic offense does not require the conviction to be removed or expunged from the applicant’s driving record under the Secretary of State (SOS). The offense will remain on the applicant’s driving record.
MULTIPLE FELONIES COMMITTED AT THE SAME TIME NOW COUNT AS ONE
Prior to this new law, two felony convictions, no matter the circumstances, were ineligible for expungement. However, the new law counts two (2) or more felony convictions as one, provided they were part of the same circumstance and committed within 24 hours of each other. This new provision alone will provide relief to a very large number of people.
However, this provision does not apply to:
Assaultive crimes (out-of-state and in-state)
A crime involving the possession or use of a dangerous weapon.
Crimes punishable by 10 years or more
SB681, approved by the Michigan Senate on Dec. 16th, 2020, would create a process to automatically set aside certain offenses for youth who stay out of trouble and seal juvenile court records from public view. Currently, those with juvenile records must wait until they are at least 18 to apply for expungement. This bill would remove the age requirement for eligibility and allow people to apply for expungement one (1) year after their court supervision ends. It would also allow traffic offenses to be set aside, which aren’t eligible under the current juvenile expungement law.
Automatic expungement without an application would kick in two (2) years after the end of a juvenile’s court supervision, or when they turn 18; whichever happens later.
One of the most progressive changes to the current Michigan expungement statute is the addition of automatic expungement for both felonies and misdemeanors. However, there are also many conditions, exceptions and exclusions to this provision. To give the state time to figure out a system to implement this, automatic expungements will not begin until Oct. 12th, 2022.
A felony or misdemeanor conviction shall be set aside without the filing of an application if both of the following apply:
For a felony, ten (10) years have passed
For a misdemeanor, seven (7) years have passed, from whichever of the following events occur last:
The date the sentence for the conviction was imposed.
The date any term of imprisonment for the conviction was completed.
Conditions to the Automatic Expungement Process
First, no more than two (2) felonies or four misdemeanors total can be automatically expunged during an individual’s lifetime. Secondly, a conviction for a felony or misdemeanor could not be automatically set aside unless all of the following apply:
The required, applicable time period has elapsed.
There are no criminal charges pending against the applicant.
The applicant has not been convicted of a crime during the required, applicable time period.
Exclusions to Automatic Expungement
Eligibility for automatic expungement does not apply to an individual who has more than one conviction for an assaultive crime. In addition, automatic expungement for a felony or misdemeanor would not apply to the following convictions:
an assaultive crime,
a serious misdemeanor,
a crime of dishonesty,
any other offense punishable by 10 or more years’ imprisonment, or a
felony violation the elements of which involve a minor, vulnerable adult, injury or serious impairment, death, or any violation related to human trafficking.
EXPUNGEMENT OF MARIJUANA CONVICTIONS:
For the first time since the legalization of recreational marijuana on Dec. 6th, 2018, there is now an opportunity to expunge misdemeanor marijuana offenses. Effective immediately, a person convicted of one or more marijuana offense can file an application to have them set aside. When filed, the reasonable presumption that the offense would have been lawful after Dec. 6th, 2018 arises.
The prosecuting agency who prosecuted the case has 60 days to object. In this case, they would hold a hearing to prove that the conduct which caused the conviction is still a criminal violation. Remember: being in possession of or cultivating up to two times the amount permissible is a civil infraction, not a criminal conviction.
Therefore, if someone was previously charged with the felony of growing 24 plants or less and the offense was plead as a misdemeanor, it is eligible for expungement. Therefore, the prosecution cannot rebut the presumption. Growing up to 24 plants, while is two times more than what is permissible, is only a civil infraction under the Michigan Regulation and Taxation of Marijuana Act (MRTMA).
Unfortunately, this provision does not apply to felony marijuana convictions.
OFFENSES THAT ARE INELIGIBLE FOR EXPUNGEMENT
The following offenses may not expunged, whether by application or the automatic process:
A felony, or an attempt to commit a felony, which carries the maximum punishment of life imprisonment.
A violation or attempted violation of the criminal sexual conduct (CSC) statutes (with the exception of CSC in the fourth degree as discussed under HB 4984); for:
offenses involving second-degree child abuse or child sexually abusive materials;
offenses involving the use of a computer to commit numerous crimes, including soliciting sex with a minor, stalking, causing death by explosives, or swatting;
a felony conviction for domestic violence if the person has a previous misdemeanor conviction for domestic violence; or a violation of Chapter LXVIIA (Human Trafficking) or Chapter LXXXIII-A (Michigan Anti-Terrorism Act) of the Michigan Penal Code.
REINSTATEMENT OF AUTOMATICALLY EXPUNGED OFFENSES
A automatically expunged charge may be reinstated if, during a motion of a person owned restitution or the court’s own motion, the individual has not made a good faith effort to pay court ordered restitution.
Under the automatic expungement provision, the obligation to pay restitution is not relieved when it is owed to the victim of a crime, nor would it affect the jurisdiction of the convicting court with regard to enforcing restitution.
Further, a conviction set aside under the application process, a marijuana misdemeanor offense, or a conviction set aside automatically could be considered a prior conviction by a court, law enforcement agency, prosecuting attorney, or the attorney general (as applicable), for purposes of charging a crime as a second or subsequent offense, or for sentencing under habitual offender statutes.
Additionally, a conviction, including any records relating to the conviction and any records concerning a collateral action that has been set aside under the act, cannot be used as evidence in an action for negligent hiring, admission, or licensure against any person.
THE TAKEAWAY IN MICHIGAN EXPUNGEMENT
Of course, the new law makes it clear that it does not create a right to expungement; it remains a privilege. This new act becomes effective on April 12th, 2021, with the automatic expungement statute becoming effective on Oct. 12th, 2022. That said, this is a major step in criminal justice reform in Michigan and it should be applauded.