In September 2020, the people of Michigan received a gift that was long overdue from the Michigan Legislature. This gift came in a package of bills titled the Clean Slate legislation. For far too long an individual’s past mistakes continued to haunt them and close doors of opportunity that presented themselves. The archaic mindset that stuck someone with a criminal conviction, even long after they had picked themselves up and become a productive member of society, was finally seen for what it was, an economic disaster.
These convictions were costing our state in loss of economic potential from its citizens and ultimately the loss of likely tax revenues. Beyond the economic aspect, it was just cruel. For too long I had fielded phone calls from potential clients that looked to close that chapter of their lives and move forward by having a previous conviction set aside. Far too many phone calls ended with, “I am sorry, you’re just not eligible to have that conviction set aside.” Usually, this was due to the painfully strict, now former, law that allowed convictions to be set aside under MCL 780.621. When a conviction is set aside, the criminal charge is essentially dismissed, and the record of that conviction is sealed from public view.
Prior to the Clean Slate legislation fix, an individual was limited to expunging one eligible felony or two eligible misdemeanors, if they did not have anything else on their records. A common issue was someone had a couple traffic related misdemeanors that ultimately caused too many convictions and therefore made someone ineligible for expungement.
Let me use this real-life example: a kid at the age of 18 was arrested for having a gun in his car under carrying a concealed weapon, see MCL 750.227, and for whatever reason was not given the Holmes Youthful Trainee Act for younger offenders found at MCL 762.11. Because the public schools stopped offering driver’s training and his single mother couldn’t afford to send him to one, he ultimately was pulled over a few times for driving with license never applied and maybe had a couple improper plate misdemeanors and no operator’s license on possession convictions. If there are more than two of these traffic convictions, he will not be eligible to have his felony set aside, even though he has become a productive member of society by holding down a job and staying out of trouble for many years. This made a huge difference because that felony conviction kept eliminating job opportunities. But worse yet, it prevented him from volunteering at his son’s school.
This was not a single extreme example; this was the norm rather than the exception. If you don’t believe me, ask any circuit court judge. Thankfully, after years of this issue coming up repeatedly, we received some good news. Now an individual may set aside an unlimited number of eligible misdemeanors and up to three eligible felony convictions under the traditional expungement process. But the new law has many details on what is eligible to be expunged.
The traditional expungement process is still used under the new law. This requires an individual to submit the following: an application to set aside their conviction, their fingerprints, and a certified copy of their conviction. After you submit the application to the court and get a hearing date 60 days out to allow for the required background checks, you then need to send in your application, fingerprints, notice of hearing, the certified copy of the conviction, and a $50.00 check made payable to the State of Michigan to the Michigan State Police. It’s also wise to send the State Police a self-addressed stamped envelope to send you a copy of the background check. Finally, you need to mail the application to set aside the conviction and the notice of hearing to the Michigan Attorney General and the prosecutor’s office that handled the original prosecution.
Under the new law, for the first-time traffic offenses may be expunged, including drunk driving offenses such as operating while intoxicated (OWI), driving while intoxicated (DWI), operating under the influence of liquor (OUIL), operating while under the influence of drugs (OUID), and operating while visibly impaired (impaired driving), are eligible for expungements. However, traffic offenses involving a death or a serious injury and traffic offenses involving the operating of a commercial motor vehicle (CDL) are not eligible to be set aside using the expungement process. It is very important to keep in mind that under this statute, the Michigan Secretary of State will still maintain any reportable driving offense to the individual’s driving record, regardless of if it was successfully set aside.
Under the traditional application for a conviction to be set aside, the applicant must wait a specific period of time to apply. The clock starts with whichever is the latest date: (1) the sentence date; (2) when you finish your jail or prison time; (3) when probation is completed; or (4) parole completion. How long you have to wait depends on the type of offense. An applicant must wait seven years if setting aside more than one felony conviction. If you’re attempting to set aside a single felony or a more serious misdemeanor conviction, then you must wait five years. If it is a non-serious misdemeanor, then you must wait only three years to apply to have the conviction set aside. Whether your misdemeanor is a non-serious conviction or not is defined under MCL 780.811, these generally include assaultive offenses such as domestic violence, breaking and entering, 4th degree child abuse, certain firearm violations, and may include convictions that originally started as a felony even if later reduced to a misdemeanor.
This new law also creates a desperately needed fix regarding multiple felony convictions out of one single bad day. Under MCL 780.621b an applicant can bundle certain felonies or misdemeanors into a single felony or misdemeanor for purposes of counts. This is for convictions that arise out the same transaction and occur within 24 hours. A good example would be someone who breaks into a building to steal a laptop computer. They may have been convicted of both breaking and entering a building and larceny from a building. If both of those ended up being felony convictions, then they had two convictions, although they were from the same incident and therefore, they were ineligible for an expungement. This was a very big issue in Oakland County because they usually would not dismiss any charges and then the attorney usually needed to work out a sentence agreement with the judge.
However, there are some limitations under the new expungement laws of which everyone must be aware. Regarding the same bad-day provision, offenses that are assaultive, or offenses that involve the use or possession of a dangerous weapon, or offenses that have a maximum penalty of 10 or more years imprisonment, are not eligible to be bundled as one count. Further, under the traditional process of the new law to set aside a conviction, an applicant may not have more than two convictions that are classified as assaultive crimes set aside during their lifetime. Finally, an applicant may not have more than 1 felony conviction for the same offense set aside if the offense is punishable by more than 10 years imprisonment.
A very big issue for potential expungements is the troublesome and vague language in MCL 780.621d(4)(c). Specifically, this section states, “The applicant has not been convicted of any criminal offense during the applicable time period….” What exactly does that mean? Does it mean that you cannot have any convictions in the last 3, 5, or 7 years since the date of application to set aside your conviction or does it mean that since the conviction date you cannot have any convictions at all? What is clear is that this language was a legislative oversight and the legislators’ motivation in passing the new law was to give more individuals an opportunity to clear their past mistakes.
Since recreational marijuana use has been legalized in Michigan, there was specific determination to give preference to expunging marijuana convictions. If an individual has a conviction for possession or use of marijuana, or possession of marijuana paraphernalia, then once the application has been submitted then a presumption arises, regarding that conviction is not considered a crime anymore. The prosecutor then has 60 days to file an answer rebutting the presumption by a preponderance of the evidence. If the answer is filed, then the court must set a hearing within 30 days. If no answer is filed, then the court must enter an order setting aside the conviction within 21 days.
Finally, as of April 11, 2023, Michigan has an automatic process to set aside certain misdemeanors and low-level felony convictions. A significant amount of this process has yet to be determined so stay tuned for future updates. Here are some links that may help you understand if you’re eligible for an automatic expungement.