Clean Slate: Michigan’s New Expungement Law
This progressive new legislation opens the door to many people who were previously ineligible for expungement. Seven new laws went into effect on April 11, 2021 and opens up the door to people who have 3 felonies and an unlimited number of misdemeanors. In addition, an eighth new law will join these and deals with the removal of a first offense Operating While Intoxicated/Impaired Driving conviction after either a 3- or 5-year waiting period (yet to be determined).
The waiting time to apply for expungement has been reduced for misdemeanor offenses from 5 years to only 3 years.
There is also no waiting period to apply to expunge misdemeanor marijuana offenses.
The One Bad Night rule considers the reality of how criminal cases work. It allows multiple offenses that occurred during one incident to be handled as one crime. For example, 3 felonies that occur in one incident are counted as only one offense.
The automatic expungement provision will not go into effect at least until 2023. Additionally, it is limited to certain offenses. The waiting period for automatic expungement is much longer, between 7 to 10 years than the waiting period to remove convictions by application, between 3 to 7 years.
The benefits to expungement are improved career options, better housing options and schools for your children, lower insurance rates, the ability to possess a firearm, and overall quality of life. Expungement will assist in career advancement because 80% of employers run a background check before hiring an employee. Employers also run background checks before promoting existing employees. Having a clean record opens doors to new opportunities both for new jobs and your existing job. Expungement is a very low-cost option considering people tend to earn 25% more within the 2 years following an expungement.
Any charge that carries more than a year in jail, or a felony, is a barrier that prevents you from getting a CPL, or concealed pistol license. However, once that conviction is removed your ability to have a CPL is once again
Insurance rates for life insurance and homeowner’s insurance can be affected by a criminal record. Insurance seeks to mitigate risk while criminal behavior is seen as risky. Therefore, you will see higher rates with a criminal record. Once you have an expungement, you are eligible for lower insurance rates.
Most rental properties run background checks and will not rent to persons with felonies or certain misdemeanors. Once you have an expungement, you are eligible to live in better neighborhoods where there are better schools for your children.
People who have a college degree earn on average $30,000 a year more than people who have a high school diploma. Having a criminal record can prevent you from being eligible for receiving student loans. Without student loans, the cost of obtaining a college education is unbearable for most people. Having an expungement done can tremendously increase your lifetime earnings and immediate income.
New Michigan Clean Slate Legislation
1) Paper Application Set Aside – MCL 780.621(1), 2020 PA 191, HB 4984
A person may apply to set aside 1 felony and 2 misdemeanor convictions under certain circumstances. Certain offenses were excluded.
Increases the number of felony offenses that can be set aside from 1 to 3 and establishes that not more than 2 can be for an assaultive crime. MCL 780.621(1)(a)-(b).
Prohibits an applicant from having more than 1 felony conviction for the same offense set aside if it is punishable by more than 10 years in prison. MCL 780.621(1)(c).
Allows an applicant to apply to have a conviction for a violation or attempted violation of MCL 750.520e set aside if the conviction was before January 12, 2015, and the person has not been convicted of more than two minor offenses. MCL 780.621(1)(d) defines a “minor offense” for the purposes of this section as a misdemeanor or ordinance violation for which the maximum permissible term of imprisonment does not exceed 90 days, the maximum permissible fine is not more than $1,000, and the person who committed the offense is not more than 21 years old.
2) Offenses That Cannot be Set Aside – MCL 780.621c, 2020 PA 187, HB 4981
Convictions for the following cannot be set aside:
1. A felony or attempted felony where the punishment is life imprisonment.
2. Certain offenses related to the exploitation and delinquency of minors. Offenses listed are MCL 750.136b(3), 750.136d(1)(b) or (c), 750.145c, 750.145d, 750.520c, 750.520d, and 750.520g. MCL 780.621c(1)(b).
3. A violation or attempted violation of fourth-degree CSC if convicted on or after January 12, 2015.
4. Certain traffic offenses, including operating while intoxicated, committing a traffic offense as a person with a CDL operating a commercial vehicle, or any traffic offense that involves injury or death.
5. Felony domestic violence, if the applicant has a previous misdemeanor conviction for domestic violence.
6. Human trafficking offenses. MCL 780.621c(1)(a)-(f).
These prohibitions on setting aside a conviction also apply to the automatic set aside provision of MCL 780.621g. MCL 780.621c(2).
An order setting aside a traffic offense does not require the SOS to remove it from the defendant’s driving record. MCL 780.621c(3).
3) “One Bad Night” – Counting Multiple Offenses within 24 Hours – MCL 780.621b, 2020 PA 188, HB 4985
Also known as “One Bad Night.” Multiple felony or misdemeanor convictions must be treated as one felony or one misdemeanor conviction if they occurred with a 24-hour period and arose out of the same transaction. Exceptions include:
1. an assaultive crime,
2. a crime involving the use or possession of a dangerous weapon,
3. a crime with a maximum penalty of 10 years or more imprisonment, and
4. a conviction for a crime that if it had been obtained in this state would be for an assaultive crime.
4) Timing for Filing Set Aside Application – MCL 780.621d, 2020 PA 190, HB 4983
This is a new section that contains many provisions from the pre-2020 amendments version of MCL 780.621 noted above. Changes include:
1. An application to set aside more than 1 felony conviction shall only be filed 7 or more years after whichever occurs last: imposition of the sentence, completion of probation, discharge from parole, or completion of any term of imprisonment. MCL 780.621d(1)(a)-(d).
2. An application to set aside 1 or more serious misdemeanor or 1 felony conviction(s) shall only be filed 5 or more years after whichever occurs last: imposition of the sentence, completion of probation, discharge from parole, or completion of any term of imprisonment. MCL 780.621d(2)(a)-(d).
3. An application to set aside 1 or more misdemeanor convictions shall only be filed 3 or more years after whichever occurs last: the imposition of a sentence, completion of any term of imprisonment, or completion of probation. MCL 780.621d(3)(a)-(c).
5) Nonpublic Status of Set Aside Convictions – MCL 780.623, 2020 PA 193, HB 4980
Includes reference to MCL 780.621e and MCL 780.621g; allows the use of a nonpublic record for making determinations about charging, plea offers, and sentencing; and creates a liability exception for reporting a conviction that was set aside if it was in the public record on the date of the report.
6) Marihuana Related Set Aside – MCL 780.621e, 2020 PA 192, HB 4982
Creates a set aside process for certain marihuana-related offenses.
A person convicted of 1 or more misdemeanor marihuana offenses may apply to set aside the conviction(s). MCL 780.621e(1).
The statute specifies that there is a rebuttable presumption that a conviction for a misdemeanor marihuana offense sought to be set aside by an applicant was based on activity that would not have been a crime if committed on or after December 6, 2018. This rebuttable presumption arises upon filing of an application listed under subsection (1). MCL 780.621e(4).
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