Category Archives: Expunge

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.

OUI’s…still no relief under the Amended Laws to expunge prior Convictions…

No relief for Traffic Offenses under the new, Amended Laws to expunge prior Convictions…

There has been a lot in the news recently about changes to the expungement laws in Michigan. It was a significant step by the Legislature. The new amendments offer hope for people convicted of certain types of offenses, notably drug convictions. More importantly, people with multiple counts of certain types of offenses may also be eligible for the first time. …see MCL 780.621, amended Am. 2014, Act 335, Eff. Jan. 14, 2015; See also House Bill No. 4186, entered as PA 463 of 2014, in the process of being codified.

Unfortunately, however, for people convicted of certain of offenses under Michigan law, notably traffic offenses, the traditional routes to seal and expunge convictions will still not be available.

Under the new amended Michigan law, the expungment statute, …see MCL 780.621, amended Am. 2014, Act 335, Eff. Jan. 14, 2015; See also House Bill No. 4186, entered as PA 463 of 2014, in the process of being codified., under section (3)(d) excludes traffic offenses, meaning convictions for offenses prosecuted under the motor-vehicle code cannot usually be expunged. See also MCL 780.621a (1a)(b)( “Traffic offense” means a violation of the Michigan vehicle code, Act No. 300 of the Public Acts of 1949, being sections 257.1 to 257.923 of the Michigan Compiled Laws, or a local ordinance substantially corresponding to that act, which violation involves the operation of a vehicle and at the time of the violation is a felony or misdemeanor.).

While traffic charges and convictions may be set-aside, dismissed, dropped, or sealed for other reasons (appeals, juvenile-offender status, court-order, not-guilty verdicts, nolle-prosequi orders, etc.), it is a much more difficult process to attempt to seal or set-aside a conviction because these types of charges have been excluded from Michigan’s expungment law, MCL 780.621. For example, according to the Michigan Court of Appeals, data in 2012, only around 21.5% of all criminal appeals resulted in either partial or full vacate/remand; meaning across all criminal-law related appeals, in 78.5% of the cases filed, the Court of Appeals affirmed a prior ruling or decision by the lower court. Again, these numbers reflect all criminal-offense related appeals to the Court-of-Appeals. It is safe to surmise that the odds of a person successfully appealing an OUI conviction to either a circuit court from district court, or to the Court of Appeals from a circuit court, are even less than the 21.5 percent.

The longevity of a possible conviction should be a consideration if a person is charged with an OUI/OWI. The collateral ramifications for this type of conviction will linger for a long period of time. There is no direct way to remove a prior conviction currently under the expungment law.

These new amendments will potentially allow a significant percentage of new people with prior convictions to have their convictions set-aside; however, it offers no relief for people convicted of offenses that would be classified as “traffic offenses.”

We represent clients throughout Michigan on traffic offenses and all types of criminal charges and appeals. For a free initial consultation, please call our Lansing office at (517) 507-5077.

For more information on other traffic offenses, such as Operating While Intoxicated, click here.

For information on additional Michigan Traffic offenses such as operating on a suspended/revoked/denied license, click here. 

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