Michigan Expungement (Order to Set Aside a conviction)
SETTING ASIDE OR SEALING A RECORD OF CRIMINAL CONVICTION
Our greatest glory is not in never failing, but in rising up every time we fail.
— Ralph Waldo Emerson-
A Criminal “Expungement” is the process of going to court to ask a Judge to set aside and seal from public record, a criminal conviction. The expungement process also gives clients the personal satisfaction of rebounding from a past mistake and error in judgment by making a “fresh start” in the eyes of the Michigan law enforcement and judicial system. A person must understand and consider this as a once in a life time privilege granted by the laws of Michigan for a “second chance”. No such privilege is currently available for a Federal conviction. Under current Michigan law, as amended 6/11 by SB 159, Act 64 Public Acts of 2011, a person who is convicted of not more than one offense may file an application with the convicting court for the entry of an order setting aside the conviction. A person who is otherwise eligible to file an application under this section is not rendered ineligible by virtue of being convicted of not more than 2 minor offenses, in addition to the offense for which the person files an application. MCL 780.621 Sec (1). A “minor offense” is defined as “a misdemeanor or ordinance violation for which the maximum permissible imprisonment does not exceed 90 days, for which the maximum permissible fine does not exceed $1,000.00, and that is committed by a person who is not more than 21 years of age”. Thus, a person having been convicted of only one offense, whether a misdemeanor or felony, and not more than 2 minor offenses committed before the persons 22nd birthday, [excluding traffic offenses reportable to the Secretory of State which may not be set aside], may qualify for an expungement; A conviction on multiple counts in one conviction, results in multiple offenses under the statute. and in such cases the person may be disqualified, unless the additional counts were reduced to minor offenses. When a record is sealed, it does not appear as a “public record” or in a criminal background check. For most purposes of the law, after obtaining a court order to set aside a conviction ”the applicant shall be considered not to have been previously convicted”. MCL §780.622 (1). However, it is important to remember that a sealed record is not destroyed. The record is available to the courts if the petitioner is later sentenced on another conviction, to police departments, firearm permit review boards, some security agencies, immigration, health care and other licensing authorities. In addition certain public offices may have access to sealed court files for restricted purposes. If the application to set aside applies to a conviction for an “assaultive crime”[1] under MCL §780.621 to § 780.624 of the Michigan Compiled Laws, or a “serious misdemeanor” under MCL §780.621 to §780.624 of the Michigan Compiled Laws, and if the name of the victim is known by the prosecuting attorney, the prosecuting attorney is required to give the victim of the crime, written notice of the application and forward a copy of the application to the victim. The victim than has the right to appear or file documents that must be considered by the judge at the time set for hearing the motion. See MCL 780.772a; 780.827a
[1] An “assaultive crime” or “serious misdemeanor” are now defined in section 10 of MCL 780.621
BENEFITS OF AN EXPUNGEMENT:
YOU MAY LEGALLY SAY ON AN APPLICATION THAT YOU HAVE NEVER BEEN CONVICTED OF A CRIME!
An expungement of your criminal conviction will help you avoid the legal, economic, and social problems of a criminal record in several other ways:
Background Checks: Your felony will no longer appear when potential employers check your record so you can stop fearing or being embarrassed when someone does a background check on you. If anyone does a background check on you, court law enforcement agency public records will indicate, “no criminal record exists”.
Civil Service: You will be eligible to serve on a jury, eligible for student loans, eligible for housing assistance; eligible for more types of professional licenses and certificates; or even eligible to run for a public office.
Voting: You will regain the right to vote in state elections.
Employment: Expunging felonies from your record will help you get that dream job.
Current Michigan law allows a one-time criminal offender the privilege to request a court to expunge (remove the conviction) from the person record if he or she satisfies all of the requirements of the Statute found at MCL 780.621. Serious crimes punishable by up to life imprisonment like murder, aggravated assault, and sex offender CSC 1-3 convictions or attempts, (with the exception of CSC in the fourth degree) and certain misdemeanor convictions, such as drunk or impaired driving or a conviction for a traffic offense reportable to the Secretary of State can never be expunged under current Michigan law.
PREPARING FOR THE HEARING:
A petition for expungement of a criminal record may not be filed until five years from the later of a persons completion of a prison term or the imposition date of a sentence. A typical case proceeds upon the filing of a petition by application and motion to set aside that must include a certified copy of the record of conviction and 2 copies of fingerprints. After review by the Michigan Attorney Generals office and criminal background checks are completed by the Michigan State Police and the FBI (4-5 months), the case will be scheduled for hearing in the Circuit Court were the petitioner was convicted and sentenced. If the former sentencing judge is still presiding on the bench, that judge will hear the motion. Otherwise it will be reassigned. The petitioner will be sworn in and may be asked to testify under oath. I recommend my clients to additionally submit written,signed, and dated letters of recommendation, or affidavits from any of petitioners past or present employers, counselors or class instructors. The Judge will review petitioners file and weigh and evaluate petitioners current “circumstances and behavior” against past conduct in view of petitioners beneficial interests to society and the “public welfare”. The petitioner has the burden of persuading the court that his or her actions and behavior since the conviction have been consistent with and demonstrate good conduct and in view of petitioners reputation within the community and people in which the petitioner resides, works and socializes. Such conduct takes into consideration petitioners community involvement and commitment to self improvement. Examples that demonstrate an improved personal sense of direction or “changed life style” will be among the factors considered by the court. These can include things such as the petitioners goals and accomplishments since the prior conviction. For some this may be a successful completion and continued commitment to maintaining personal rehabilitation gained from counseling or awareness programs; enrollment in and/or the completion of a high school certification, technical or college degree program; accomplishments through petitioners employment. Even just the fact a petitioner has been holding down a job or manages and maintains a family may be included among factors considered. Other things considered may include the petitioners active participation in voluntary non-profit type programs, extracurricular school, church or local community activities, or involvement in junior athletics or community sports programs. Any thing that evidences a demonstrated commitment to the petitioners active participation in programs beneficial to societies interest and away from behavior that lead to petitioners previous misconduct would be relevant to the courts consideration. The Judge must be convinced there has been a significant positive change away from petitioners previous conduct and behavior that resulted in the prior conviction. The judge must be confident the person deserves to have a second chance and confident it would be unlikely for petitioner to make the same mistake again. The court must make a sufficient analysis of the facts and circumstances in your case and cannot deny your request without an explanation on the record as to the basis of the determination. If the petitioner is successful in convincing the Judge they are worthy of a clean criminal record, the person will be granted an order setting aside the conviction.
Michigan Court Forms
MC 227: Application to Set Aside (Adult) Conviction
JC66: Application to Set Aside (Juvenile) Adjudication
COMPLETION TIME:If you would like to “erase” or expunge a criminal conviction from your record, I can certainly assist you. The laws and procedures for setting aside a conviction in Michigan are in transition and I would be happy to answer your questions.
Please keep in mind that sealing or expunging a record can take 5-7 months on average. The sooner you start the sooner it will be done. Clients often ask if it can be done faster. The answer is no and there is nothing that I can do as an attorney to complete the process faster. Several federal, state and county agencies must be notified and sign off before the court schedules the hearing. Each one of them takes their own respective time to complete their part.
Interested in a second chance? Get a FREE MICHIGAN EXPUNGEMENT EVALUATION!
STEP 1 – DETERMINE IF YOU QUALIFY. Review the application form link above. If you would like my assistance to prepare and file the application materials and appear with you at the hearing before the Judge, I would ask that you complete and submit the “DO I QUALIFY FOR AN EXPUNGEMENT” form in the heading listed above.
