Most Michigan lawyers will tell prospective clients that it is impossible to set aside or "expunge" a CSC 4th Degree conviction, despite a client's eligibility under the Michigan Setting Aside Convictions Act. Other attorneys who do not have significant experience with Michigan's Setting Aside Convictions Act will fail to properly prepare legal pleadings and effectively argue in court, most often resulting in a denial from the court and embarrassment for the client who is then required to wait at least 3-years before they can reapply to have their conviction set aside.
CSC 4th Degree (criminal sexual conduct) is a "high court" misdemeanor punishable by imprisonment for not more than 2-years and/or a fine of up to $500.00. In reality, CSC 4th Degree is considered a felony as it is punishable by a possible sentence of more than 1-year of imprisonment. For example, a person convicted of CSC 4th Degree is prohibited from purchasing, possessing, concealing, selling, or transporting a firearm or ammunition under federal law.
In addition to court imposed penalties such as potential imprisonment, a CSC 4th Degree conviction carries significant collateral consequences including public shame and scrutiny for a sexual assault related conviction. In most cases, a CSC 4th Degree conviction will result in placement of the convicted on the Michigan Sex Offender Registry for up to 25-years in certain situations.
Recent changes to the Michigan Setting Aside Convictions Act and the Michigan Sex Offender's Registration Act ("SORA") now provide an avenue for those convicted of CSC 4th Degree to seek early removal from SORA if their CSC 4th Degree conviction is set aside by the sentencing court. If an application to set aside a conviction is granted, the applicant is no longer considered "convicted" of a SORA registerable offense. MCL 28.722(a)(i), states that "convicted does not include a conviction that was subsequently set aside" under the Setting Aside Conviction Act. Additionally, MCL 28.725 provides that upon receipt of an order setting aside a registerable offense under SORA, the Michigan State Police shall remove the individual from both the law enforcement database and the public internet Sex Offender Registry, and that individual's obligation to register is discontinued. However, only certain people will be considered "eligible" to have their CSC 4th Degree conviction set aside.
Procedural Eligibility Requirements
Michigan's Set Aside Conviction Act has very narrowly tailored eligibility requirements for applicants seeking to have a CSC 4th Degree conviction set aside.
First, only applicants convicted of CSC 4th Degree prior to January 12, 2015 are eligible.
Second, an applicant must have no criminal convictions other than up to 2 convictions for "minor offenses," which are defined as misdemeanor or ordinance violations that carry a maximum possible term of imprisonment of up to 90-days of incarceration, the maximum fine cannot exceed $1,000.00, and at the time the minor offense was committed, the applicant was not more than 21-years old.
Third, an applicant cannot have any criminal convictions, including a minor offense, within 5-years after the date that the applicant was discharged from court supervision, including probation, parole, or incarceration, whichever occurs latest.
Fourth, an applicant cannot have any criminal charges pending at the time the application is filed with the court.
Substantive Eligibility Requirements
In addition to the basic procedural eligibility barriers listed above, an applicant seeking to have a CSC 4th Degree conviction set aside must prove to the court that his/her circumstances and behavior since the date of the conviction warrant setting the conviction aside and that doing so is consistent with "public welfare." Convincing a judge that an applicant meets both of these substantive requirements requires extensive preparation. In addition to judges often scrutinizing these cases more than others, in light of the sexual assault conviction, prosecutors often strongly oppose granting a CSC 4th Degree set aside. Moreover, victims have a right to be notified of the application and appear in court to contest the application, presenting additional challenges to winning. However, despite these challenges, an application to set aside a CSC 4th Degree conviction can be won and relief granted to an applicant.
Expungement Motion Granted
In addition to my significant experience setting aside both felony and misdemeanor convictions across the State of Michigan, I am one of just a few lawyers in the entire State of Michigan who has successfully set aside a CSC 4th Degree conviction in highly contested cases. I have fought and won in court for my clients, securing their removal from SORA and the restoration of their civil rights. If you or a loved one are interested in having a CSC 4th Degree conviction set aside, it is vital that you contact an experienced set aside conviction attorney.