On April 12, 2021, the State of Michigan will forever change. That is the date when the Clean Slate Expungement laws signed by Michigan's governor in October 2020 become active law. The Clean Slate Expungement laws significantly change who can get an expungement, when you can get an expungement, what crimes can be expunged, among several other directly impactful amendments to the preexisting statutory framework.
If you are considering having a conviction set aside through an expungement, it is important that you contact a Michigan Criminal Defense Attorney experienced in successfully setting aside convictions. When contacting a lawyer, you should know your criminal record or have already obtained a copy through the Michigan State Police Criminal Background Search Tool "iChat" - HERE. Often lawyers inexperienced in expungements will not understand what convictions can be set aside, the applicable time period, or common pitfalls that may arise throughout the application process. It is important that you hire the right lawyer first because if you are unsuccessful in convincing the court that your conviction should be set aside or you or your lawyer do not know the procedural requirements, you could be forced to wait over 3-years before you are allowed to reapply for an expungement. The collateral consequences of a criminal conviction are severe, pervasive, and life altering. Make the right decision the first time you apply to have a conviction set aside.
How Does the Expungement Process work in Michigan?
Technically, a criminal conviction is "expunged" in Michigan through a court order "setting aside" the conviction. It requires the filing of a Motion to Set Aside Conviction in the court in which the conviction occurred. Once your Motion is filed with the appropriate court, you will then need to serve several documents, including your fingerprints and your Application/Motion to Set Aside Conviction on the appropriate prosecutor's office, Michigan State Police, and Michigan Attorney General's Office. If you meet the procedural requirements, often relating to how many convictions you have on your criminal record, confirmed through a background check conducted by the Michigan State Police, your matter will then be considered by the applicable court and judge. The judge hearing your expungement matter will be the judge who presided over your criminal case, if he or she is still an active judge.
Most often expungement matters proceed to a hearing before a judge, who must then determine if your behavior and circumstances since the date of your conviction warrant setting aside your conviction, and if setting aside your conviction is consistent with public welfare. When determining if you meet these two standards, the judge will consider your criminal history, information submitted by the prosecutor's office, and information and exhibits that you and your attorney prepare for the court. In every single expungement case I handle, I prepare a detailed Memorandum in Support of my client's Application/Motion to Set Aside detailing why my client meets both the procedural and substantive burdens. I have significant experience in both district court and circuit court expungements, and have consistently identified what is needed to successfully set aside my clients' convictions. Sometimes, a judge will read my client's Memorandum in Support and, if there are no objections form the prosecutor, grant my client's Application/Motion without a hearing. It is important that the expungement process is as quick, thorough, and stress free for each of my clients.
Overview on the Changes Taking Place on April 12, 2021
For too long those with Michigan convictions were unable to set aside certain convictions because of Michigan's arbitrary expungement restrictions. For example, prior to April 12, 2021, if you had 1 felony conviction, but more than 2 misdemeanors you were prohibited from having that felony expunged! If you had 2 felony convictions, without any misdemeanors you were also prohibited from even asking the court to set aside your felony. Convictions under the Motor Vehicle Code were also excluded as expungable offenses.
On April 12, 2021, the following changes take effect:
Misdemeanor and felony traffic convictions under the Motor Vehicle Code, with a few exceptions, can be set aside. For example, Fleeing & Eluding or Resisting and Obstructing convictions under the Motor Vehicle Code are now eligible!
Up to 3 felonies can be expunged.
Unlimited misdemeanors can be expunged.
Up to 2 "Assaultive Crimes" can be expunged. "Assaultive Crimes" include - any Felony or Misdemeanor Assault; Threats, Assaults, and Batteries against certain State Employees; Robbery; Carjacking; crimes including explosives or other dangerous/harmful chemicals/substances; Terrorism; Homicide, Murder, Assault with Intent to Murder (AWIM), Mayhem; Unlawful Imprisonment; Molestation; Child Abuse; Rape; Criminal Sexual Assault or Criminal Sexual Conduct; Home Invasion; Felonious Discharge of a Firearm; and crimes resulting in a miscarriage or death/harm to an embryo or fetus.
No more than 1 felony can be expunged for the same crime if the maximum sentence for that crime was 10-years imprisonment or more (even if you didn't serve any time).
"One Bad Night" - Multiple felony or misdemeanor convictions are now treated as one felony or one misdemeanor conviction if they occurred within a 24-hour period and arose out of the same transaction. Exceptions include: Assaultive Crimes; crimes involving the use or possession of a dangerous weapon; and crimes with a maximum penalty of 10-years or more imprisonment.
Waiting Period - the waiting period following your discharge (release) from probation, parole, or incarceration (jail/prison) is now 3-years for most misdemeanors; 5-years for "Serious Misdemeanors" and up to 1 felony; and 7-years for multiple felony convictions. Importantly, any new conviction during your waiting period resets the time you must wait before you are eligible for an expungement. Also, expungements are not available with a pending charge.
"Serious Misdemeanors" - now defined by law to include: Assault & Battery, Aggravated Assault, Domestic Violence, Child Abuse 4th Degree, Breaking and Entering, Illegal Entry, Stalking, Leaving the Scene of a Personal Injury Accident, Contributing to the Delinquency of a Minor, Neglect of a Minor, Using the Internet for a Prohibited Communication; Pointing/Aiming a Firearm without Malice; Discharge of a Firearm Aimed at a Person; Indecent Exposure; Injuring a Worker in a Work Zone, and Selling/Furnishing Alcohol to a Minor.
Crimes that Cannot be Expunged - the following crimes/convictions are ineligible for expungement: Life felonies or attempted life felonies (i.e., crimes punishable by up to life in prison), Felony Domestic Violence (with a prior misdemeanor Domestic Violence conviction); Felony Child Abuse; most Criminal Sexual Conduct convictions (CSC 4th Degree may be eligible under limited circumstances); OWI/DUI; Convictions involving a Commercial Vehicle; Traffic Offenses causing Injury or Death; Terrorism; any offense directly/indirectly related to Human Trafficking; Holding Individual in Debt Bondage; and Permitting a 16-year-old or younger female to be in a house of prostitutions.
Marijuana - A person convicted of 1 or more misdemeanor marijuana/marihuana offenses may apply to have his or her conviction set aside. There is a presumption that a conviction for misdemeanor marijuana offenses sought to be set aside was based on activity that would not be a crime if committed on or after December 6, 2018. "Misdemeanor marijuana offense" is defined by law to include possession of marijuana, use of marijuana, or selling marijuana paraphernalia. There is no required waiting period.
What about Automatic Expungement?
Additionally, in some very limited circumstances, low level offenses will be eligible for an automatic expungement as early as October 12, 2023. However, it should be noted that the State of Michigan can, by law, extend the deadline for starting automatic expungements. Further, Assaultive Crimes, crimes of dishonesty, felonies punishable by 10 or more years imprisonment, crimes against children or vulnerable adults, or crimes related to human trafficking are not eligible for automatic expungement. If you or a loved one would like to be free from the burden of a prior conviction, you should contact Bondy Law, PLLC for a consultation to see if waiting for the State to take action is in your best interest.
Winning an Expungement and Clearing Your Record
Hiring a lawyer is often the last thing that anyone really wants to do, but should often be the first phone call you make when considering an expungement. While a lawyer is not required for an expungement, I often see Applications/Motions to Set Aside a Conviction lose in court because the individual applicant or the lawyer does not know the law or have sound legal strategies needed to win. Having a conviction set aside is neither a guarantee nor a right, it is a privilege that is only granted to those who convince the court that they deserve extraordinary relief. I have won expungement Applications/Motions across the State of Michigan by spending the time needed to succeed in developing the most persuasive arguments for my clients. Let me help you get your life and civil liberties back. Call me today for a free consolation.