Michigan Criminal Law: Conviction/Post Conviction; Expunging A Prior Conviction
*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.
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.
Our experienced attorneys have successfully assisted clients set-aside their prior convictions. Let us help you. For a free initial consultation, please contact us at (517) 507-5077.
For information on the Holmes Youthful Trainee Act, click here.
For information on probation violations, click here.