Author Archives: CCRS

Expunging a crime in Michigan under the new amended law

*These laws have recently changed…see MCL 780.621.

1. What Types of Crimes are Eligible?

*The most recently amended law, MCL 780.621 will make a significantly larger percentage of people with prior convictions eligible. Currently, the amended version is the process of being codified.

Notably, this law altered and amended the language regarding minor misdemeanor offenses. This will make it easier for people with multiple misdemeanor convictions, as long as they meet the rest of their eligibility criteria, to potentially get them expunged.

Section (a) notes;

(a) A person who is convicted of not more than 1 felony offense and not more than 2 misdemeanor offenses may petition the convicting court to set aside the felony offense.” See House Bill No. 4186, entered as PA 463 of 2014 (1).

Please, note, however, a significant percentage of misdemeanors and felonies are still excluded from being expunged. Traffic offenses, for example, are still excluded; meaning no, it is not possible under this law to get an OUI/OWI conviction set-aside. See PA 463 of 2014 (3)(d).

However, it substantially increases the number of potential applicants because it altered the language regarding minor offenses and it permits more people now with multiple convictions of misdemeanors to potentially apply.

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2. How does the process work?

Assuming a person meets the eligibility criteria, any effort to expunge an offense cannot commence until five years after the date of conviction. The process starts with an application, preferably with an affidavit and certified copy of the original conviction. The applicable statute and application contains more detail. Applications may need to be notarized and potentially witnessed as well, depending on the materials.

Next, you will be required to submit a fingerprinting card and a background check. Out-of-state convictions count. It is vital to make sure there is nothing out-of-state that could show up during this background check. Lastly, applicants will need to schedule a hearing and appear before a judge to convince the judge that they are worthy of having the offense expunged in order to complete the process. The process usually takes several months.

3. Potential Obstacles

There are numerous potential obstacles along the way. There are no guarantees; even if an application is properly filled out and a person’s background is clear.

Some judges closely scrutinize prospective applicants and are hard to convince. Judges often reject prospective applicants for several reasons. Red flags include whether an applicant had later contacts with police, if they were charged with any new offenses but acquitted, whether the prospective applicant had aggressive interactions with law enforcement during the original charge, or many other potential factors.

If a person served a term of probation and if they had problems with their probation officer, that could be a red flag. Probation officers may be a powerful ally if there was a good relationship, but a probation officer would also have an influential voice if things did not go well.

Further, if a victim in the original offense had especially strong feelings regarding the conduct, that could be an issue. Judges and Prosecutors will solicit and value the opinion of the “victim” of the offense.

The prosecuting attorney may also have objections. The Prosecutor’s office, as well as the Attorney General’s office, potentially, will have a say and a chance to express their views on the issue.

Basically, a judge will closely scrutinize how the prospective applicant lived their life since the conviction. Judges will receive information from a variety of parties, and not all of that information may be favorable depending upon the alleged circumstances.

4. Finishing Steps

If an applicant is successful during their hearing, the presiding judge will grant an order expunging the conviction. If the applicant files the appropriate paperwork with a copy of that order, the police will then potentially destroy any fingerprints on file from the original case. An expunged offense should be off a person’s public record. However, there may be traces of the proceedings still in court-files or other locations. Further, law enforcement officials and court-officers may still have some access or awareness of the prior conviction. However, removing it from the public record will make it very difficult to find, especially if a person follows up with the police and gets their fingerprints destroyed. While it may take some work, expunging a past criminal conviction is worth the effort. However, it takes work, organization, and a willingness to put the time into the process.

This new law substantially increases the number of people who may now be eligible. If you need specific legal advice for your particular circumstances, we encourage you to privately consult with a lawyer. Our office frequently handles this types of matters. For a free initial consultation, please contact us at (517) 507-5077.

For more information on Michigan criminal law, click here.

Pre-trial bond is not out of reach

When a person is arrested and arraigned on a criminal misdemeanor or felony, bond is frequently an issue. When magistrates and arraigning judges determine a bond or bail amount, the purpose is not to punish someone for being charged. Unless a person is charged a violent capitol offense such as murder, there should be some type of bond or bail. Courts look at a variety of factors, with their primary focus on a person’s perceived threat to the community and possible flight risk.

Further, the amount or conditions are not set in stone. Bond conditions may be challenged or modified later on by motion, or the presiding judge may decide to add additional conditions to a bond. The process of determining a bond amount varies significantly depending on the particular county, type of offense, whether a person has a past criminal history, and many of the factors.

However, this guide provides some insight into what the courts are supposed to examine when the amount is set.

Types of Bond

There are two important components with different types of bonds. First, there is the listed amount for the bond. This is a monetary determination made by the arraigning or presiding judge or magistrate. The second classification addresses how that bond can be posted. This guide lists some of the more common types of bonds. For more detailed information, please review Michigan Court Rule (herein-after “MCR”) 6.106.

  • “Personal Recognizance:” Here, a person does not need to post any sort of bond to remain free from custody as their case proceeds.Common with less severe misdemeanors.
  • “Cash/Surety:” A person needs to either post the listed amount or either obtain a bondsman who can provide a surety or negotiate some of type of “surety” agreement with the court.
  • “10%:” A person needs to only pay 10% of the listed amount. There may be additional classifications or modifications depending on a person’s county of residence. Some judges may require a GPS tether for example.

Bond Factors

MCR 6.106 (F) (1) (a-i) lists the following bond factors: (a) defendant’s prior criminal record, including juvenile offenses; (b) defendant’s record of appearance or nonappearance at court proceedings or flight to avoid prosecution; (c) defendant’s history of substance abuse or addiction; (d) defendant’s mental condition, including character and reputation for dangerousness; (e) the seriousness of the offense charged, the presence or absence of threats, and the probability of conviction and likely sentence; (f) defendant’s employment status and history and financial history insofar as these factors relate to the ability to post money bail; (g) the availability of responsible members of the community who would vouch for or monitor the defendant; (h) facts indicating the defendant’s ties to the community, including family ties and relationships, and length of residence, and (i) any other facts bearing on the risk of nonappearance or danger to the public.

General Advice

Some general tips prior to being arraigned on a felony or misdemeanor charge:

  • Have a trusted friend or family member appear at your arraignment. It’ll be potentially important to have someone available.
  • Never assume you’ll be given a personal recognizance bond. Even with misdemeanor offenses, an arraigning judge may still insist on a small cash bond. Make sure you bring some cash or bring a trusted friend or family member with some money in case you need to post a bond.
  • Have the cards of a few bondsman with you. If you know you may have to post in advance, it helps to have the contact information about bondsman in your local area.
  • Bring personal paperwork with you regarding your employment, medical conditions, etc. As noted above, the court looks at these factors.
  • Retain council and have legal representation at your arraignment. The right lawyer who represents you well could make the difference between walking out that day or getting stuck with a big bond.

For additional information, please visit the following link:

Michigan Court Rules

Our experienced trial attorneys fight hard for our Michigan clients. We represent clients statewide. For a free initial consultation, feel free to contact us at (517) 507-5077.

For more information on Michigan criminal law, click here.

For information on Michigan No-Contest pleas, click here.

For information on expunging prior non-traffic convictions under Michigan law, click here.

For information on Michigan probation violations, click here.

Marital Property versus Separate Property

I am frequently asked about how to differentiate marital versus separate property in a divorce.  Michigan law tries to be clear-cut on a topic that is rarely so easy.

Separate property is anything that belonged to one party or the other prior to the date of the marriage. Assets and income that is acquired during the marriage is considered “marital,” unless those assets fall into a special category, or have become co-mingled. This is true only to a degree, however. For instance, it is possible for the Court to divide income that was never co-mingled if it exists in a jointly held account.

Income of either party is technically considered “marital” once it hits a joint account. Frequently, a party will try to prevent his paychecks from becoming “co-mingled”  in order to create a better argument that that money is his separate property. BUT, he does not have a “good” argument for this and will likely not prevail at trial.

 

If you need specific legal advice for your particular circumstances, we encourage you to privately consult with a lawyer. Our office frequently handles this types of matters. For a free initial consultation, please contact us at (517) 507-5077.

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For information on Michigan Divorces, click here.
For information on steps to file a divorce in Michigan, click here.