Expungement

NEW: Setting Aside a Michigan Criminal Conviction

As of April 1, 2023 new legislation goes into effect involving Michigan’s nationally unique “Clean Slate Act” of 2020 which is composed of seven separate statutes which were passed into law a few months ago.

As a precatory remark, it must be said that our good legislature sometimes does not consider the practicality of new House or Senate bills which modify, change or replace existing legislation, and this time is no exception. To begin with, “expungement” is not a word that has ever been used in Michigan law, rather the term “setting aside a conviction” is used. They mean absolutely the same thing.

These new changes have such a matter in one of the two significant modifications to the “Clean Slate Act.” The first deals with the maximum time imposed for the least egregious criminal activities, the misdemeanor.

A little history: In the mid-1980s the Legislative Branch of our state government decided that a 90-day misdemeanor would be replaced by a 93-day misdemeanor because of the number of days in consecutive months. There were too many criminal misdemeanors to locate (as well as some “blue laws” that were never taken out of the statute books or repealed) so they determined that all new misdemeanors or existing ones that were being updated would be 93-day and all of the older 90-day minor offenses would just remain on the books. Therefore, at that time there were then five types of Michigan misdemeanors (not counting attempted misdemeanors), to wit: the 90-day, the 93-day, the 6-month, the one year and the ‘high court’ two year (where one cannot go to a prison term).

It should be noted that city, village and township administrations who passed ordinances to the same effect as the state statutes regarding a criminal matter most often simply ‘cut and paste’ the exact verbiage of the statute as part of their own ordinance. Why ordinance rather than state statute… because the smaller municipality could keep the larger portion of fines and costs imposed to pay, in part, for their local police departments that conducted the arrest.

However, beginning with the 2012 update on the 1965 setting aside legislation, the matter of the 90-day vs. 93-day came into legislative focus and they came up with the concept of regular vs ‘serious’ misdemeanors. “Clean Slate Act” continued this by cutting and pasting the House and Senate Bills with the old maximum jail penalty formula of ‘regular vs ‘serious’ misdemeanors’ from the prior legislative update.

Two of these new April 1, 2023 changes are indeed new and beneficial to those who have past misdemeanors and/or felony convictions which may be seeking to have set aside, these being:

1. An automated system for setting aside (expunging) convictions without the necessity of filing an application will be established.
2. Up to two (2) felonies will automatically be expunged the later of 10 years after sentencing or the persons release date from custody.

This automatic expunging does not qualify for matters of assaultive offenses*, convictions for “serious (93-day) misdemeanors,” convictions of more than 10 years imprisonment, matters involving a minor, a vulnerable adult, an injury or serious impairment of a person, or death of a person. It also doesn’t qualify in convictions for human trafficking or any other of the “Clean Slate” prohibitions under MCL 780621c. Therefore, only the rare antique conviction of the 90-day misdemeanor can be automatically expunged under this new legislation.

*Misdemeanor domestic assaults (a ‘serious misdemeanor) can be applied for but not automatically set aside.

So, taken together with the existing “Clean Slate” legislation, what do these changes amount to?

The “Clean Slate Act” allows up to three (3) felonies to be expunged following the norms of not being prohibited and beyond a certain number of years having passed. Which ones are automatically removed, and which one isn’t if you have a total of three? It doesn’t say which one of the three must be separately applied for formal removal.

The second matter which lends itself to confusion of practitioners, the courts and the general public which may be affected is that this new legislation states that “up to four (4) misdemeanors which qualify will be automatically expunged seven (7) years after sentencing.” Under the “Clean Slate Act” an unlimited number of qualifying misdemeanors can be petitioned to be set aside. Again, which ones (beyond four) will need to be applied for?

Lastly, it should be noted that among the package of seven separate statutes that make up the “Clean Slate Act,” there is one which addresses the matter of use and/or possession of marijuana [MCL 780.621e(1)] being automatically removed at some future date. This future date was and is one of having the near one hundred separate district courts receiving funding from somewhere to have their individual court personnel dig through all past convictions to have these matters identified and sent to the State Police Headquarters to be removed or sealed from the public record of the individual. This hasn’t happened as of this date.

What is Expungement?

(1) The Destruction or Return of Fingerprint and Arrest Cards,

and/or

(2) The Setting Aside of a Conviction in Michigan

The Williams Law Firm specializes in the Michigan areas of the law that allow for the destruction (or return) of fingerprints and the arrest card contained in the file (often referred to as “the expungement law“), and the we statutes, which allow for the “setting aside of a criminal conviction.”

We represent clients in ALL Michigan courts. We are Michigan’s premier firm in the area of removing a prior conviction from one’s public record. Our services include the sealing of the criminal file (removal from public access) and, in cases of expungement applications, the returning of or the Ordered destruction (by shredding or incineration) of the fingerprint and arrest card. This service pertains to misdemeanor and felony convictions which qualify under the law. Our service further includes Certificates of Rehabilitation, obtaining the abstract of court actions, and the assistance with the fingerprint process to make application.

Don’t let a criminal conviction be a shadow on your life. By expunging or setting aside a prior conviction on your record, you can legally and honestly say that you have no conviction of any crime.

If you were convicted of a crime, a reputable and skilled criminal defense lawyer may be able to secure the expungement or a setting aside from public record of the conviction from your criminal record. The expungement of fingerprints and the arrest cards and the setting aside of a conviction from the public record can make a world of difference to you in the future.

The Williams Law Firm will explain what your options are, and what we can do to help you.

Call for your FREE CONSULTATION

517-337-8100

Expungeable Offenses

Destruction or Return of Fingerprints and Arrest Card, and/or the Setting Aside of a Conviction, may be sought in Michigan for any crime except:

• A conviction for a crime punishable by the possibility of life imprisonment
• A violation of criminal sexual conduct (except CSC 4th)
• Any traffic criminal traffic convictions, inclusive of drunk driving offenses*
• Conviction for more than one offense*
• Convictions that were received by the Department Of Corrections in less than sixty months (5 years) prior. **
  * denotes matters recently changed by PA 63 which now means one felony and up to two minor misdemeanors.
  ** be aware of the dates as to failed special status matters (such as HYTA)

Understand Terminology

To Avoid Confusion Regarding Terminology, Please Read The Following:

1. Understanding the Difference Between The Statutes For Relief

The word “expungement” is a term that has been used in law for well over one hundred years in common law jurisdictions. It is in fact merely a “generic” word in terms of legal description. It may not mean what you think it does.

MCL 28.243 is a law that is nearly 90 years old, and has been modified by amendments periodically up to the present time. It is commonly referred to, even by the State Police, as “the law regarding expungements“. However, nowhere in the wording of this law appears the actual word “expungement.” It talks about the destruction (now inclusive of “return”) of fingerprints earlier taken, and of the criminal arrest card that is kept on file (records). The “expungement process” under this law is still possible today if it is done correctly. The difference between “Setting Aside” and what MCL 28.243 provides has to do with the matter of the return or destruction of the subject materials as opposed to being sealed and held thereafter by the State Police.

The two “Setting Aside” statutes (Adult and Juvenile) referred to below call for, following the granting of the Motion, the “sealing” and NOT the return or destruction of the records, which are held by the State Police.

If an “Expungement” Motion is granted simultaneously with, or as a part, of a Motion to Set Aside being granted, the destruction or the return of the fingerprints and arrest cards do not happen. Instead they are “sealed” along with the mug shots and other materials, and are protectively “set aside” in a “sealed” status to be held by the State Police, and hence, become non-public (except for what is otherwise disseminable under Item 2, discussed below). However, if the MCL 28.243 is brought independently, or prior to a petition being made to set aside (in the event that a setting aside of a second conviction is permitted under the language of PA 64) through a Court Order, the traditional destruction can take place, allegedly by incineration, or the return to the Petitioner of the fingerprints and arrest card record then held by the State Police.

2. Understanding The CCH and The ICHAT System

One may think that the Compiled Criminal History (CCH) is the only criminal LIEN (Law Enforcement Information Network) on a given individual. This is not true.

Not only is there an FBI record kept on all felony convictions reported since 1972 (and all misdemeanors prior to that date), but there are other records kept that indicate past actions (arrests as well as convictions), which are held by other governmental agencies as well. The records of convictions and “cases where adjudication is not determined” are disseminated in our “Open Records State” as to what is on an individual’s CCH.

There are at least three levels, or in fact versions, of what the Internet Criminal History Access Tool (ICHAT) (P.A. 310 of 2005) provides on any given individual in so far as seeing what is on one’s record. The first is what is now made available to the public (inclusive of employers doing background checks) by way of the State Police ICHAT system. The next is what is available to the courts and to the pre-sentence people when compiling the ORV and PRV grids for the sentencing guidelines used at the time of criminal sentencings. Lastly, with certainty there is a third level of information, in all possibly inclusive of Sheriff’s Lien materials (stops, pre-arrest investigations, conflicting identity queries, etc.), available to higher security interests.

NOTE: Domestic violence deferments are listed on ICHAT even though Section 769.4 (a) status was granted.

State Police ICHAT Dissemination Guidelines (as of 3/15/2010)

The following information will NOT be released through ICHAT:

• Criminal history incidents that are closed WITHOUT a conviction (Released – No Prosecution, Nolle Prosequi, Dismissed, Acquittal), or the conviction has been set aside or expunged.• Criminal history incidents with a judicial disposition of Deferred HYTA and Deferred MIP.
• Criminal history incidents where the individual was a juvenile at the time of arrest, where the arrest is less than 12-months-old, and neither charge nor judicial information have been received by MSP.
• Criminal history incidents where the individual was a juvenile at the time of arrest, where the arrest is 12-months-old or more, and no conviction information have been received by MSP.
• Criminal history incidents where the individual was an adult at the time of arrest, where the arrest is 12-months-old or more, and neither charge nor judicial information has been received by MSP.

The following information WILL be released through ICHAT:

• Criminal history incidents that are closed WITH a conviction, regardless of the age of the individual.• Criminal history incidents with a judicial disposition of Deferred (other than HYTA and MIP).
• Criminal history incidents where the individual was a juvenile at the time of arrest, where the arrest is less than 12-months-old, and charge but not judicial information has been received by MSP.
• Criminal history incidents where the individual was an adult at the time of arrest, where the arrest is less than 12 months, and neither charge nor judicial information have been received by MSP.
• Criminal history incidents where the individual was an adult at the time of arrest, where the arrest is 12-months-old or more, and either charge and/or judicial information have been received by MSP.

Michigan Removal of a Criminal Public Record

Five years must pass after the Department of Corrections receives the Record of Action(abstract) from the sentencing court before a conviction can be set aside by expungement or an action to set aside a conviction for someone who was not imprisoned as a consequence of his or her conviction. Someone who is jailed or imprisoned must wait until five years after his or her release from prison to apply for any type of removal of a criminal conviction record. One must return to the jurisdiction and the venue, if applicable, of the sentencing court to obtain the expungement or setting aside.

Michigan law presently allows for the return/destruction of fingerprints and arrest card, as well as for the setting aside of a prior conviction petitions, to be granted only one time to the criminal offender if he or she satisfies all of the requirements of the Setting Aside A Conviction statute under MCL 780.621 (adult); MCL 712 A.18e (juvenile); MCL 28.243 (expungement).

However, PA 64 now modifies the parameters of the law, and in its present language, to include two misdemeanors and one-felony convictions, possibly traffic offenses (such as vehicular homicide, fleeing and alluding, etc.) except for Section 625 alcohol driving offenses, among others. In a petition to the court to “set aside your conviction” or “expunge” the record, the court will weigh your “circumstances and behavior” against the impact to the “public welfare”. In other words, the petitioner has the burden of proving to the court that his or her actions and behavior from the date of the conviction until the time of the application are consistent with the goals of protecting public welfare and warrant the expungement of the criminal conviction. The court must make a sufficient analysis of the facts and circumstances in the petitioner’s case, and cannot deny your request without explanation as to the basis of its determination. It is solely in the discretion of the court to so grant or deny such a petition, but if denied, it may be brought again at a later date to show new evidence of rehabilitation. NOTE: There are however significant problems with PA 64, notably among them is that they used language of the old 1963 statute in defining what “minor misdemeanor” is. PA 64 defines it as a 90 day offense; since 1986 all new misdemeanors and all modifications to existing misdemeanors carry a minimum of 93 days. This basically makes PA 64 useless for possibly 90% of the cases which would otherwise be affected. In so making 90 days the criteria as opposed to having it read 93 days is frankly beyond anything making sense for the purpose intended for this new law and denotes sloppy legislative drafting. (Rick Jones sponsored this bill which has became law.)

While the majority of one-time criminal offenders are eligible for expungement relief or setting aside of a conviction, there are certain crimes, which are specifically excluded and are not eligible to be “expunged” or set aside. For example, any conviction where the maximum punishment is life imprisonment, or an attempt to commit a felony for which the maximum punishment is life imprisonment, may not be “expunged” or set aside by the court. Therefore, a conviction for First Degree Criminal Sexual Conduct, Second Degree Criminal Sexual Conduct, Third Degree Criminal Sexual Conduct or Assault with Intent to Commit Criminal Sexual Conduct, are not eligible, nor is any type of drinking and driving offense. Again, a person with more than one conviction including all felonies and misdemeanors AT THIS TIME is not eligible for the removal of a criminal conviction or the destruction/return of any materials, but again, PA 64 allows for two misdemeanors committed prior to the twenty-first birthday plus other relief, and again, there is pending legislation to further expand what can be included in such relief. At the present time, traffic (motor vehicle code) misdemeanors, which appear on the Secretary of State (SOS) lien, cannot be expunged, such as reckless driving, negligent homicide, vehicle homicide, flee and alluding under the driving code, etc., cannot be expunged, but this, too, is presently under consideration for relief. Other SOS lien information of past infractions do in fact self expunge (drop off or no longer appear after ten years), again with the exception of the Section 625 alcohol/driving convictions, for example. Reckless Driving convictions are used for SOS revocation (rather than suspension) as to the “two within seven years” or “three within ten years” criteria (although reckless driving convictions cannot be used toward the charging of a felony criteria of “three convictions during your lifetime” under Heidi’s Law (see OWI OFFENSES).

The application process involves the gathering and the drafting of specific documentation and obtaining applicable court records that are often stored in State or county warehouses, along with having the police take new sets of fingerprints, which are forwarded along with the individual’s Petition to the “State Police Lookup Division” in Ypsilanti for their review (to see if you have ever used this one-time opportunity before). Both the Prosecutor of the county in which the Petition is made, as well as the Michigan Attorney General, must be served a copy of the filed Petition. The Attorney General’s Office must verify that there are no other felonies from jurisdictions outside of Michigan via the federal FBI lien as well as state, and whether their office has either no objection or so state reasons for an objection. An application will not be considered unless it contains all of the information required by whichever statute relief is sought under.

It is important to have an attorney represent you who understands the process of expungement/Setting Aside a Conviction proceedings, and can work quickly and efficiently to obtain all of the necessary documentation as well as prepare you to testify at the hearing in Court.

An expungement (Motion for the Destruction or Return of Fingerprint Cards and Arrest Card) /Setting Aside a Conviction may be the best investment that you could ever make. The benefits include, but are in no way limited to: telling a prospective employer that you have not been convicted of a crime; eligibility for student loans; eligibility for housing assistance; eligibility for more types of professional licenses and certificates; telling friends and family that you have not been convicted of a crime; and stop fearing or being embarrassed when someone does a background check on you. An expungement/Setting Aside a Conviction, if granted, eliminates all public records of you.

Note bene A word about those one time convictions of quasi-sex crimes, such as accosting a minor, CSC 4th (the high court misdemeanor), etc., and all of the sex based statutes that are not prohibited to be “expunged” or set aside.

Under specific statutory mandate, EVEN THOUGH PUBLIC EVIDENCE HAS BEEN REMOVED AND THEREFORE A CRIMINAL RECORD NO LONGER EXISTS ON THE CCH, individuals so cleared of such conviction none the less are STILL required to register with and annually or semi-annually report their residential address to the State Police, which means that they stay on the State Police internet site for sex offenders for the balance of the original term for reporting that was set at the time of sentencing.

>>>>This is required by separate statute. see: MCL 28.722, Sec 2 (a)(i)

However, the public background checks routinely done by potential employers normally, but not always, use the CCH viewing mechanism of ICHAT via the State Police’s open records system. It is possible, however, for someone checking background to search every county in the State under county-by-county and town-by-town by the photographic listing that the State Police maintains online to locate a now non-public CSC 4th offender who is still completing the balance of his/her term of being on the local community sex offenders photo website even though the CCH ICHAT would come back clean.

Lastly, sex-related convictions, such as Sexual Lewd and Lascivious Behavior and Soliciting a Married Woman for Sex, for but two examples, do NOT carry the reporting/registration mandate. One might wish to explore such a possibility prior to a plea being tendered, that would result the reporting and registration requirements.

How Do I Get Started?

STEP 1

Determine if you qualify by answering the following questions:

• Have you never had a record expunged? Have you never have been convicted (adjudicated guilty) of a misdemeanor, criminal ordinance violation (this includes criminal traffic cases such as OWI – formerly called OUIL, UBAL, DUI, reckless driving, or driving while license suspended) or a felony?
• Are you currently under court supervision, probation, parole, community control, or any other court mandated program?
  Is your offense one for which you received a deferred adjudication such as HYTA or MIP?

STEP 2

Call The Williams Law Firm for your FREE CONSULTATION at 517-337-8100

COMPLETION TIME: Please keep in mind that sealing or expunging a record can take three-six months on average. The sooner you start the sooner it will be done. We are often asked if it can be done faster. The answer is no. Also, there is no extra fee you can pay to get it done faster either. There are several agencies that must be dealt with in order to complete this legal process and each one of them takes their own respective time to complete their part.

BEWARE of any law firm that promises that they can complete this in less time.