Michigan Expungement Law

Michigan, like many states, has a legal procedure for allowing a person convicted of certain criminal offenses to petition the court to have the criminal conviction expunged. The statutory citation for this law is MCL 780.621. While “expungement” or “expunged” is the word that is commonly used to describe this legal procedure, in Michigan the the formal name for the procedure is an Application for Order Setting Aside Conviction. A recent amendment to Michigan's expungement law which went into effect on January 12, 2015 and will allow many Michiganders with criminal records who did not qualify under the previous version of the law to apply to have their criminal convictions set aside. This article discusses how the newly amended law works and who it applies to.

Who Qualifies?

In general, the law provides that any person who has not been convicted of more than one criminal offense may apply to have the conviction set aside. However, this general rule has several exceptions which both limit and expand the scope of the general rule.  Individuals with more than one convicted who are still eligible under the following exceptions:

• Applicants who have not more than one felony conviction and not more than two misdemeanor offenses may apply to have the felony conviction set aside.
• Applicants who have been convicted of not more than two misdemeanor offenses and no other felony or misdemeanor offenses may apply to have one or both misdemeanor offenses set aside.
• Applicants who were convicted of Criminal Sexual Conduct in the Fourth Degree (CSC 4th) or an attempted CSC forth before January 12, 2015 who have no other criminal convictions except for not more than two “minor offenses” may apply to have the CSC 4th set aside. “Minor offenses” are misdemeanors where all of the following apply: 1.) Maximum punishment does not exceed 90 days in jail; 2.) The maximum fine does not exceed $1000; and 3.) The applicant committed the offense prior to his 21st birthday.

Importantly, for the purposes of Michigan's expungement law certain convictions which were deferred and ultimately dismissed must be counted when determining whether a person is eligible to have a conviction set aside. This includes convictions which were deferred and dismissed under the following provisions of Michigan law:

• MCL 333.7411. Commonly referred to as “7411” this provision of law allows for deferred adjudication and dismissal of charges for certain substance abuse violations.
• MCL 600.1209. Charges dismissed as a result of successful completion of Veterans Treatment Court.
• MCL 762.13. Charges dismissed under the Holmes Youthful Trainee Act or “HYTA.”
• MCL 769.4a. Deferred adjudication for domestic violence charges.
• MCL 750.350a. Deferred adjudication for parental “kidnappings.”
• MCL 750.430. Deferred adjudication for healthcare professionals practicing under the influence of alcohol or controlled substances.
• MCL 436.1703. Deferred adjudication for consumption or possession of alcohol by a minor.

Who Doesn't Qualify

Michigan's expungement law is not available for those who have been convicted of certain specified offenses which include:

• Any felony or an attempt to committ a felony for which the maximum punishment is life imprisonment.
• Traffic offenses including OWI
• Felony domestic violence if the person has previously been convicted of misdemeanor domestic violence.
• Human trafficking offenses
• Terrorism offenses
• Child abuse offenses
• Child pornography offenses
• Criminal sexual conduct offenses

There is also an exception for persons who are convicted of certain prostitution offenses which were committed as a result of being a victim of human trafficking. Persons who qualify under this section may apply to have more than one conviction set aside.

Timing of Application

Applicants who are eligible to apply to have their conviction set aside may not do so until five years after the time the last of the following events occur:

• Sentencing
• Completion of probation
• Discharge from parole
• Completion of any term of imprisonment

The five year rule does not apply to applications by human trafficking victims convicted of certain prostitution offenses. Such applications may be filed any time after the date of conviction.

Denial & Subsequent Applications

A person whose application to set aside conviction is denied may not reapply to have the same conviction set aside for a period of three years unless otherwise ordered by the denying court.

The Application Process

The application is made by completing the approved Application to Set Aside Conviction form. The application must then be submitted, along with a complete set of fingerprints and the required $50 fee, to the Michigan State Police. The applicant must also serve a copy of the application on the Michigan Attorney General and the prosecuting attorney who prosecuted the crime which is sought to be set aside.

Once the court receives the report from the Michigan State Police, a hearing on the application will be scheduled and the court may require an evidentiary hearing. Upon the conclusion of the hearing, the court may grant the application if it determines that the behavior of the applicant from the date of conviction until the date the application was filed warrant setting aside the conviction and is consistent with the public welfare. A decision to grant or deny the application is entirely within the discretion of the court and it is not a matter of right.

Retaining the assistance of a qualified attorney to prepare and handle your application to set aside a conviction can greatly increase your chances of success. A skilled attorney knows how to present the types of evidence and other supporting documentation that will pursuade a judge to rule in your favor and increase your chances of success. If you would like an evaluation of your eligibility to apply to set aside your conviction or would like to retain us to handle your application please contact us today.