New MI Law Allows for Expungement of Multiple Convictions

Although past criminal convictions may seem like a distant memory, they have the ability to create lasting problems throughout an individual's life; for example, almost all colleges and most employers ask applicants about criminal convictions. However, due to a new Michigan law, some students and young individuals may not be subjected to the rigors of employment and academic investigation. The Governor signed a bill on June 23rd that will allow a person to clear or expunge his or her criminal record if he or she has committed up to three "minor offenses", or one previously cleared offense and two "minor" offenses. As defined in the bill, a "minor offense" means a misdemeanor or ordinance violation for which the maximum punishment is not more than $1,000 or 90 days imprisonment, and the crime is committed by a person who is not more than 21 years old.

A few examples of misdemeanors that qualify for expungement are furnishing alcohol to minors, MIPs, and disorderly conduct convictions. Most other misdemeanors carry a minimum of 93 days in jail and therefore the law is not applicable. The motivation for this legislation came from young people finding themselves in trouble with multiple convictions for MIPs or disorderly conduct who are new to the criminal justice system or do not have a complete understanding of the process involved. Instead of discussing their options with their parents or an attorney, young people often plead guilty without understanding the impact these charges may have on their future, hoping their parents never discover their criminal involvement. While the new law provides an opportunity for a limited number of convictions to be expunged, most offenses do not fall within the law's restrictions. A conviction for a felony punishable by life imprisonment, a conviction for certain violations or attempted violations, or a conviction for a traffic offense cannot be cleared under this process. For a complete list of violations and convictions that can or cannot be expunged, individuals should consult with an attorney.

It should be noted that the process for getting a criminal conviction set aside is fairly complex. First, the individual must file an application with the convicting court, as well as submit a copy and two complete sets of fingerprints to the Department of State Police. If the individual has multiple convictions in different locations then an application must be filed with each convicting court. An individual must wait 5 years after sentencing, or 5 years after completing any term of imprisonment for that conviction, whichever occurs later.

The application must also contain the following information:

  • Full name and current address of the applicant;
  • A certified record of the conviction;
  • A statement that the applicant has not been convicted of an offense other than the conviction sought to be set aside and not more than 2 minor offenses;
  • A statement as to whether the applicant has previously filed an application to set aside this or any other conviction;
  • If so, the disposition of the application;
  • · A statement as to whether the applicant has any other criminal charge pending against him or her;
  • Consent to the use of the nonpublic record.

The Department of State Police compares these records to the records it has on file, and then reports to the court any information regarding pending charges against the applicant, any records of conviction, and whether any convictions have been set aside. The applicant must also submit a fee of $50 to the State Police with the application for processing expenses. The attorney general and the attorney who prosecuted the crime must also be served a copy of the application; both have the opportunity to contest the application. If the crime involved an assault or serious misdemeanor, the prosecutor will notify the victim, and the victim has the right to appear at any proceeding and to make a written or oral statement concerning the conviction. The act defines "assaultive crimes" under Chapter 10 of the code of Criminal Procedure, and "serious misdemeanor" under the William Van Regenmorter Crime Victims Rights Act. Please refer to those laws or an attorney for a complete definition.

If the court determines that the application and the applicant's behavior during the application process period warrant setting aside the conviction(s), and that setting aside the conviction(s) is consistent with the public welfare, then the court may enter an order setting it or them aside. The bill makes it clear that "the setting aside of a conviction under this act is a privilege and conditional and is not a right." Therefore it is within the court's discretion to determine whether or not an applicant has sufficiently demonstrated that expungement is warranted.

For the Act in its entirety please visit: http://legislature.mi.gov/documents/2011-2012/publicact/pdf/2011-PA-0064.pdf

By George Zulakis, Attorney at Law
& Karen Clark, Attorney at Law; Law Clerk