Michigan Expungement attorney
Lansing Expungement attorney - Clean Slate
Michigan’s Expungement Law
Evolution of Michigan Expungement Law - from one offense total to Clean Slate
The Michigan expungement law for setting aside a criminal conviction, MCL 780.621, has experienced multiple changes over the course of the last five to ten years.
Michigan law originally only allowed for the expungement of one total offense. So an individual could only expunge one total offense from their record. This kept thousands of Michiganders from being able to expunge anything because they had multiple offense and convictions on their record.
Michigan’s expungement law underwent significant changes with the passing of House Bill 4186 (HB 4186). HB4186 amended sections of MCL 780.621 and MCL 780.623 and went into effect on January 12, 2015. HB4186 increased the eligibility for Michigan citizens to set aside criminal convictions and shelter their prior mistakes from public record.
Michigan's Expungement Law underwent an additional change with Public Act 336. This change opened up more opportunities for expungement in the State of Michigan and became effective on March 14, 2017.
In September 2020, the Michigan legislature passed a series of bills that are known as the Clean Slate legislation. The Clean Slate law became effective on April 11, 2021. So the Clean Slate law is now the law of the State of Michigan.
The Clean Slate law dramatically increases the eligibility for citizens to expunge and set aside convictions from their record. This allows Michigan citizens to have a new chance at life and will open up employment opportunities, educational opportunities, and other life opportunities. The Clean State law is a historic bill that will assist up to a million Michiganders and give them a new change on life.
REQUIREMENTS FOR MICHIGAN EXPUNGEMENT LAW UNDER CLEAN SLATE:
Traditional Application to Set Aside Conviction
MCL 780.621(1)(a) amended states, in pertinent part:
(a) Except as provided in subdivisions (b) and (c), a person convicted of 1 or more criminal offenses, but not more than a total of 3 felony offenses, in this state, may apply to have all of his or her convictions from this state set aside.
(b) An applicant may not have more than a total of 2 convictions for an assaultive crime set aside under this act during his or her lifetime
(c) An applicant may not have more than 1 felony conviction for the same offense set aside under this section if the offense is punishable by more than 10 years imprisonment
WHAT DOES THIS MEAN:
- a person may now expunge an unlimited amount of qualifying misdemeanor convictions
- a person may now expunge up to 3 qualifying felony convictions
- a person may only set aside a total of 2 assaultive crimes - whether they are a felony or a misdemeanor
- a person may only set aside 1 felony conviction for the same offense that is punishable by more than 10 years imprisonment; so if a person has multiple convictions for the same offense that are punishable by more than 10 years imprisonment, then that person may only set aside one of those convictions Example: if a person had multiple convictions for unarmed robbery under MCL 750.530 (punishable by not more than 15 years imprisonment), then that person may only set aside one of those unarmed robbery convictions
NOTE: For the purpose of the Clean Slate expungement law, the following, whether a misdemeanor or a felony, are to be considered misdemeanor convictions to determine whether a Michigan resident is eligible for an expugement:
(a) a Minor In Possession of Alcohol (MIP) conviction that was deferred and dismissed under MCL 436.1703
(b) a conviction that was deferred and dismissed pursuant to a drug treatment court under MCL 600.1070
(c) a conviction that was deferred and dismissed pursuant to a Veteran’s treatment court under MCL 600.1209
(d) a conviction that was deferred and dismissed under the Holmes Youthful Trainee Act (HYTA) under MCL 762.13
(e) an assaultive crime conviction that was deferred and dismissed under MCL 769.4a
(f) a drug crime conviction that was deferred and dismissed under MCL 333.7411
(g) a kidnapping conviction that was deferred and dismissed under MCL 750.350a,
(h) a health care professional conviction that was deferred and dismissed under MCL 750.430, and
(i) any other law or laws of the State of Michigan or a political subdivision of the State of Michigan that are similar in nature and applicability to those laws listed above that provide for a deferral and dismissal of a felony or misdemeanor charge
NOTE: On January 18, 2018, the Michigan Minor In Possession of Alcohol (MIP) law was amended to provide that a first time MIP offense will be punishable by a state civil infraction, which is not a deferral that would count as a misdemeanor conviction for the purpose of the Michigan expungement statute. A minor may be found responsible or admit responsibility only once, so any subsequent MIP offense that an individual pled guilty to or was found guilty of would be a misdemeanor for the purpose of the Michigan expungement statute.
Convictions That Are Ineligible for Expungement Under Clean Slate:
Under MCL 780.621c added, the following offenses are disqualifying offenses and may NOT be expunged under Michigan law:
§ a felony for which the maximum possible penalty is life imprisonment or an attempt to commit a felony for which the maximum possible penalty is life imprisonment [MCL 780.621c(1)(a)]
§ a violation or attempted violation of child abuse in the second degree pursuant to MCL 750.136b(3) [MCL 780.621c(1)(b)]
§ a violation or attempted violation of child abuse in the second degree pursuant to MCL 750.136d(1)(b) [MCL 780.621c(1)(b)]
§ a violation or attempted violation of child abuse in the second degree pursuant to MCL 750.136d(1)(c) [MCL 780.621c(1)(b)]
§ a violation or attempted violation of child sexually abusive activity pursuant to MCL 750.145c [MCL 780.621c(1)(b)]
§ a violation or attempted violation of child sexually abusive activity pursuant to MCL 750.145d [MCL 780.621c(1)(b)]
§ a violation or attempted violation of criminal sexual conduct second degree pursuant to MCL 750.520c [MCL 780.621c(1)(b)]
§ a violation or attempted violation of criminal sexual conduct third degree pursuant to MCL 750.520d [MCL 780.621c(1)(b)], and
§ a violation or attempted violation of assault with intent to commit criminal sexual conduct pursuant to MCL 750.520g [MCL 780.621c(1)(b)]
§ a violation or attempted violation of criminal sexual conduct fourth degree, if the conviction occurred on or after January 12, 2015 [per amended MCL 780.621, effective March 14, 2017] [MCL 780.621c(1)(c)]
The following traffic offenses: [MCL 780.621c(1)(d)]
(i) a conviction for operating while intoxicated
(ii) any traffic offense committed by an individual with an indorsement on his or her operator's or chauffer's license to operate a commercial motor vehicle that was committed while the individual was operating the commercial motor vehicle or was in another manner a commercial motor vehicle violation
(iii) any traffic offense that causes injury or death
§ a felony conviction for domestic violence, if the person has a previous misdemeanor conviction for domestic violence [MCL 780.621c(1)(e)]
§ a violation of the former section of the Human Trafficking chapter of the Michigan Penal Code, MCL 750.462a to MCL 750.462j [per amended MCL 780.621, effective March 14, 2017] [MCL 780.621c(1)(f)]
§ a violation of the former section Michigan anti-terrorism act, Chapter LXXXIII-A, of the Michigan Penal Code, MCL 750.543a to MCL 750.543z [per amended MCL 780.621, effective March 14, 2017] [MCL 780.621c(1)(f)]
NOTE: a person convicted of a violation or attempted violation of criminal sexual conduct fourth degree, in violation of MCL 750.520e, on or before January 12, 2015, may petition for an expungment if the individual has not been convicted of another offense other than not more than 2 minor offenses. “Minor offense” means a misdemeanor or ordinance violation where the maximum possible imprisonment does not exceed 90 days, the maximum fine is not more than $1000, and the person who committed the offense is not more than 21 years old.
NOTE: a person convicted of solicitation of prostitution under MCL 750.448, admitting to a place of prostitution under MCL 750.449, or aiding and abetting the above crimes under MCL 750.450, or a local ordinance substantially corresponding to those sections, may apply to expunge that conviction if he or she committed the offense as a direct result of his or her being a victim of human trafficking. Further, a person may apply to have more than 1 conviction set aside under this section and may apply to have the 1 or more conviction set aside at any time following the date of the conviction.
FURTHER REQUIREMENTS FOR MICHIGAN EXPUNGEMENT LAW - CLEAN STATE
WAITING PERIODS UNDER CLEAN SLATE: [MCL 780.621d added]
Multiple Felonies: If you are requesting more than one felony to be set aside, then you must wait at least 7 years after whichever of the following events occurs last:
. the imposition of the sentence for the convictions that the person seeks to expunge
· the completion of the probation imposed for the convictions that the person seeks to expunge
· the discharge from parole imposed for the convictions that the person seeks to expunge, or
· the completion of any term of imprisonment imposed for the convictions that the person seeks to expunge [triggering events]
NOTE: under Clean Slate, the current interpretation of the law says that you must not have any convictions for any offense during the 7 year period after the last of the triggering events. Example: Person A has 2 felony convictions for larceny in a building from 2005; Person A is sentenced to three years probation, which is completed in 2008; Person A may expunge the 2 felony convictions so long as Person A does not have any convictions between 2008 and 2015 [MCL 780.621d added (4)(a)-(c)]
One Felony: If you are requesting one felony to be set aside, then you must wait at least 5 years after whichever of the following events occurs last:
. the imposition of the sentence for the conviction that the person seeks to expunge
· the completion of the probation imposed for the conviction that the person seeks to expunge
· the discharge from parole imposed for the conviction that the person seeks to expunge, or
· the completion of any term of imprisonment imposed for the conviction that the person seeks to expunge [triggering events]
NOTE: under Clean Slate, the current interpretation of the law says that you must not have any convictions for any offense during the 5 year period after the last of the triggering events. Example: Person B has 1 felony convictions for possession of cocaine from 2010; Person B is sentenced to two years probation, which is completed in 2012; Person B may expunge the 1 felony conviction so long as Person B does not have any convictions between 2012 and 2017 [MCL 780.621d added (4)(a)-(c)]
Serious Misdemeanors: If you are requesting any serious misdemeanor to be set aside, then you must wait at least 5 years after whichever of the following events occurs last:
. the imposition of the sentence for the conviction that the person seeks to expunge
· the completion of the probation imposed for the conviction that the person seeks to expunge
· the discharge from parole imposed for the conviction that the person seeks to expunge, or
· the completion of any term of imprisonment imposed for the conviction that the person seeks to expunge [triggering events]
NOTE: under Clean Slate, the current interpretation of the law says that you must not have any convictions for any offense during the 5 year period after the last of the triggering events. Example: Person C has 1 serious misdemeanor conviction for domestic violence from 2012; Person C is sentenced to two years probation, which is completed in 2014; Person C may expunge the 1 serious misdemeanor conviction so long as Person C does not have any convictions between 2014 and 2019 [MCL 780.621d added (4)(a)-(c)]
Non-serious misdemeanors: If you are requesting any non-serious misdemeanor to be set aside, then you must wait at least 3 years after whichever of the following events occurs last:
. the imposition of the sentence for the conviction that the person seeks to expunge
· the completion of the probation imposed for the conviction that the person seeks to expunge
· the discharge from parole imposed for the conviction that the person seeks to expunge, or
· the completion of any term of imprisonment imposed for the conviction that the person seeks to expunge [triggering events]
NOTE: under Clean Slate, the current interpretation of the law says that you must not have any convictions for any offense during the 3 year period after the last of the triggering events. Example: Person D has 1 non-serious misdemeanor conviction for disturbing the peace from 2015; Person D is sentenced to one year of probation, which is completed in 2016; Person D may expunge the 1 non-serious misdemeanor conviction so long as Person D does not have any convictions between 2016 and 2019 [MCL 780.621d added (4)(a)-(c)]
NOTE: if a person petitions to have a conviction expunged and is denied by the convicting court, the person is not permitted to re-file another petition concerning the same conviction until 3 years after the date the convicting court denies the petition, unless the convicting court specifies an earlier date for filing another petition in an order denying the petition. MCL 780.621d added (5)
DEFINITIONS:
“Felony” means:
· for the purpose of an offense to be expunged: a violation of the penal law of the State of Michigan that is punishable by imprisonment for more than 1 year or that is designated by law to be a felony
· for the purpose of identifying a prior offense: a violation of the penal law of the State of Michigan or of the United States that is punishable by imprisonment for more than 1 year or is designated by law to be a felony [MCL 780.621 amended (4)(c)]
“Misdemeanor” means:
· a violation of a penal law of the State of Michigan, another state, an Indian tribe, or the United States that is not a felony
· an order, rule, or regulation of a state agency that is punishable by imprisonment for not more than 1 year or a fine that is not a civil fine, or both
· a local ordinance of a political subdivision of the State of Michigan that substantially corresponds to a crime listed above that is not a felony
· a violation of the law of another state or political subdivision of another state that substantially corresponds to a crime listed above that is not a felony, and
· a violation of the law of the United States that substantially corresponds to a crime listed above that is not a felony [MCL 780.621 amended (4)(f)]
“Operating while intoxicated” means:
· a violation of MCL 257.625 and MCL 257.625m
· a local ordinance that substantially corresponds to a crime listed above
· a law of an Indian tribe that substantially corresponds to a crime listed above
· a law of another state that substantially corresponds to a crime listed above
· a law of the United States that substantially corresponds to a crime listed above [MCL 780.621 amended (4)(g)]
“Serious misdemeanor” means that as defined in MCL 780.11:
(i) A violation of section 81 of the Michigan penal code, 1931 PA 328, MCL 750.81, assault and battery, including domestic violence.
(ii) A violation of section 81a of the Michigan penal code, 1931 PA 328, MCL 750.81a, assault; infliction of serious injury, including aggravated domestic violence.
(iii) A violation of section 115 of the Michigan penal code, 1931 PA 328, MCL 750.115, breaking and entering or illegal entry.
(iv) A violation of section 136b(7) of the Michigan penal code, 1931 PA 328, MCL 750.136b, child abuse in the fourth degree.
(v) A violation of section 145 of the Michigan penal code, 1931 PA 328, MCL 750.145, contributing to the neglect or delinquency of a minor.
(vi) A misdemeanor violation of section 145d of the Michigan penal code, 1931 PA 328, MCL 750.145d, using the internet or a computer to make a prohibited communication.
(vii) A violation of section 233 of the Michigan penal code, 1931 PA 328, MCL 750.233, intentionally aiming a firearm without malice.
(viii) A violation of section 234 of the Michigan penal code, 1931 PA 328, MCL 750.234, discharge of a firearm intentionally aimed at a person.
(ix) A violation of section 235 of the Michigan penal code, 1931 PA 328, MCL 750.235, discharge of an intentionally aimed firearm resulting in injury.
(x) A violation of section 335a of the Michigan penal code, 1931 PA 328, MCL 750.335a, indecent exposure.
(xi) A violation of section 411h of the Michigan penal code, 1931 PA 328, MCL 750.411h, stalking.
(xii) A violation of section 601b(2) of the Michigan vehicle code, 1949 PA 300, MCL 257.601b, injuring a worker in a work zone.
(xiii) A violation of section 617a of the Michigan vehicle code, 1949 PA 300, MCL 257.617a, leaving the scene of a personal injury accident.
(xiv) A violation of section 625 of the Michigan vehicle code, 1949 PA 300, MCL 257.625, operating a vehicle while under the influence of or impaired by intoxicating liquor or a controlled substance, or with an unlawful blood alcohol content, if the violation involves an accident resulting in damage to another individual's property or physical injury or death to another individual.
(xv) Selling or furnishing alcoholic liquor to an individual less than 21 years of age in violation of section 701 of the Michigan liquor control code of 1998, 1998 PA 58, MCL 436.1701, if the violation results in physical injury or death to any individual.
(xvi) A violation of section 80176(1) or (3) of the natural resources and environmental protection act, 1994 PA 451, MCL 324.80176, operating a vessel while under the influence of or impaired by intoxicating liquor or a controlled substance, or with an unlawful blood alcohol content, if the violation involves an accident resulting in damage to another individual's property or physical injury or death to any individual.
(xvii) A violation of a local ordinance substantially corresponding to a violation enumerated in subparagraphs (i) to (xvi).
(xviii) A violation charged as a crime or serious misdemeanor enumerated in subparagraphs (i) to (xvii) but subsequently reduced to or pleaded to as a misdemeanor. As used in this subparagraph, "crime" means that term as defined in section 2. [MCL 780.621 amended (4)(h)]
TRAFFIC OFFENSES:
Most traffic offenses are now eligible for expungement, whether they are felonies or misdemeanors. This means that you may now expunge fleeing and eluding felony offenses that were charged under the Motor Vehicle Code. This means that you may now expunge most traffic misdemeanors such as driving while license suspended and improper plate and allowing an unlicensed driver to drive.
The traffic offenses that are still ineligible for expungement are:
(i) a conviction for operating while intoxicated
(ii) any traffic offense committed by an individual with an indorsement on his or her operator's or chauffer's license to operate a commercial motor vehicle that was committed while the individual was operating the commercial motor vehicle or was in another manner a commercial motor vehicle violation
(iii) any traffic offense that causes injury or death
Application Requirements:
- Signed under oath by the person whose conviction or convictions are to be expunged
- full name and current address of the applicant
- certified record of each conviction that is to be expunged
- statement that the applicant has not been convicted of an offense other than the conviction or convictions sought to be expunged and any non-disqualifying misdemeanor convictions described in the expungement statute
- statement listing all actions that were initiated against the applicant and have been dismissed through deferral
- statement as to whether the applicant has previously filed an application to set aside this or any other conviction, and if so, then what was the disposition of that application [NOTE: this will require careful wording to the Court if you are attempting to set aside 2 different convictions in 2 different courts at the same time]
- statement as to whether the applicant has any other criminal charge pending against the applicant in any court in the United States or any other country
- if applying to set aside human trafficking convictions, then meeting the statutory requirements
- consent to use of the non-public record as authorized by law
There are additional procedural and legal steps that must be completed in order to get an expungement in the State of Michigan.
Further, an expungement in Michigan has a legal effect under the law. Namely:
- upon the entry of an order to set aside a conviction, a person shall be considered not to have been previously convicted, except for the purposes of the Michigan Sex Offender Registration Act, MCL 28.722. See MCL 780.622(1) and MCL 780.622(3) [NOTE: there is a conflict between the Clean Slate law and the amended Sex Offender Registration Act (SORA), which says that an expunged offense does allow removal from the Sex Offender Registry, see MCL 28.722(a)(i)]
- an applicant to set aside a conviction is not entitled to remission of any fine, cost, or other money paid as a consequence of any conviction that is set aside. See MCL 780.622(2)
- the Setting Aside Convictions Act 213 of 1965 does not affect the right of an applicant to rely upon the conviction to bar subsequent proceedings for the same offense [double jeopardy]. See MCL 780.622(4)
- the Setting Aside Convictions Act 213 of 1965 does not affect the right of a victim of a crime to prosecute or defend a civil action for damages. See MCL 780.622(5)
- the Setting Aside Convictions Act 213 of 1965 does not create a right to start an action for damages for incarceration under the sentence the applicant served before the conviction is set aside. See MCL 780.622(6)
Further, upon the entry of an order to set aside a conviction, the trial court must send a copy of the order to the arresting agency and the department of state police. The department of state police shall retain a nonpublic record of the order setting aside conviction and of the record of the arrest, fingerprints, conviction, and sentence of the applicant in the case to which the order to set aside the conviction applies. See MCL 780.623(1)
The nonpublic record shall be provided to the person whose conviction is set aside upon payment of a fee charged to the department of state police in the same manner provided in the freedom of information act, MCL 15.234. Otherwise, the nonpublic record shall be made available to a court of competent jurisdiction, an agency of the judicial branch of state government, the department of corrections, a law enforcement agency, a prosecuting attorney, the attorney general, or the governor, only for limited purposes as described in MCL 780.623(2).
As one can see, getting an expungement in the State of Michigan is complex and requires a competent and experienced Michigan Expungement Attorney.
Call our office right away to discuss expungements in Michigan: 517-618-1580.
The Law Office of Eric J. Sheppard
2109 Hamilton Road, Suite 206
Okemos MI 48864
ericsheppard16@gmail.com
PH: 517-618-1580 (office)
PH: 216-973-9996 (cell)
Fax: 517-913-6321
2109 Hamilton Road, Suite 206
Okemos MI 48864
ericsheppard16@gmail.com
PH: 517-618-1580 (office)
PH: 216-973-9996 (cell)
Fax: 517-913-6321