There are strict rules regarding eligibility for setting aside certain criminal convictions (also known as “expungement”). However, if qualified, the ability to remove a misdemeanor or felony from your criminal record can create personal or professional opportunities that were not available before. In 2015, MCL 780.621 was amended to make more people eligible for expunging felony or misdemeanor convictions. If you haven’t looked at expungement in some time or you have been previously denied, then it is time for a second look.
The current eligibility requirements are as follows:
- A person who is convicted of not more than one felony offense and not more than two misdemeanor offenses may petition the convicting court to set aside the felony offense
- A person who is convicted of not more than two misdemeanors (except for criminal sexual conduct – fourth degree or attempted criminal sexual conduct – fourth degree) and NO felonies may petition the convicting court(s) to set aside one or both misdemeanors.
- A person who is convicted of criminal sexual conduct – fourth degree or attempted criminal sexual conduct – fourth degree (MCL 750.520e) BEFORE January 12th, 2015, may petition the convicting court to set aside this conviction if the individual has not more than two other “minor offenses” on his or her criminal record. A “minor offense” means ALL OF the following:
- It was a misdemeanor or ordinance violation with a maximum penalty not exceeding 90 days in jail or $1000.00 in fines.
- The person committed the offense when he was not more than 21 years old.
For the purposes of determining the number of misdemeanor convictions for an individual’s eligibility in setting aside a felony, a person must count the following deferred or dismissed convictions (whether a misdemeanor or a felony) as a “misdemeanor conviction”:
- A conviction of minor in possession of alcohol dismissed pursuant to MCL 436.1703.
- A criminal conviction deferred or dismissed by successful completion of the drug treatment court program pursuant to MCL 600.1070.
- A criminal conviction deferred or dismissed by successful completion of the veteran’s treatment court program pursuant to MCL 600.1209.
- A criminal conviction deferred or dismissed by successful completion of the Holmes Youthful Trainee Act pursuant to MCL 762.13.
- A domestic violence conviction deferred by successful completion of Michigan’s Domestic Violence First Offender Program under the Spousal Abuse Act pursuant to MCL 769.4a.
- A drug conviction deferred or dismissed under MCL 333.7411.
- A conviction of parental kidnapping deferred or dismissed under MCL 750.350a.
- A conviction of prohibited conduct by a health care professional deferred or dismissed under MCL 750.430.
- Any other law of the State of Michigan or any of its subdivisions (e.g. township, city) similar in nature and applicability to those listed above that provide for the deferral or dismissal of a felony or misdemeanor.
A person CANNOT expunge or set aside a conviction for any of the following:
- A felony or attempted felony where the maximum punishment is life imprisonment.
- A violation or attempted conviction of child abuse (MCL 750.136b or MCL 750.136d), offenses regarding child sexually abusive activity (MCL 750.145c), using a computer or Internet connection to accost a minor or engage in child sexually abusive activity (MCL 750.145d), criminal sexual conduct – second degree (MCL 750.520c), criminal sexual conduct – third degree (MCL 750.520d), or assault with intent to commit sexual penetration (MCL 750.520g).
- A conviction of criminal sexual conduct – fourth degree or attempted criminal sexual conduct – fourth degree (MCL 750.520e) ON OR AFTER January 12th, 2015.
- A traffic offense, whether a misdemeanor or felony. A “traffic offense” is defined as “a violation of the Michigan Vehicle Code,… being sections 257.1 to 257.923 of the Michigan Complied Laws, or a local ordinance substantially corresponding to that act, which violation involves the operation of a vehicle and at the time of the violation is a felony or misdemeanor.” MCL 780.621a; People v Bosma, 186 Mich App 556; 465 NW2d 24 (1990). Traffic offenses include, but are not limited to, reckless driving, driving while license suspended or revoked, operating without insurance and operating while intoxicated.
- A felony conviction for domestic violence if the person has a previous misdemeanor conviction for domestic violence.
- A conviction for human trafficking (MCL 750.462a to MCL 750.462h) or terrorism (MCL 750.543a to MCL 543z).
According to MCL 780.621(5), an application for expungement can only be filed 5 or more years after whichever of the following events OCCURS LAST:
- Imposition of the sentence for the conviction to be set aside;
- Completion of probation imposed for the conviction to be set aside;
- Discharge from parole imposed for the conviction to be set aside; or
- Completion of any term of imprisonment for the conviction to be set aside.
If a court denies a petition to expunge a conviction or convictions, an individual cannot file again to expunge those same convictions until 3 years after the date the first petition was denied, unless the court allows specified an earlier date. MCL 780.621(6).
There are special expungement rules for individuals convicted of soliciting prostitution (MCL 750.448), engaging in prostitution (MCL 750.449) or aiding and abetting prostitution (MCL 750.450) who committed these offenses AS VICTIMS OF HUMAN TRAFFICKING.
- An application for expungement can be filed at any time (as opposed to waiting 5 years after completion of sentence) and can request to have more than one conviction set aside. MCL 780.621(7).
- An applicant may have the convictions set aside if he or she proves by a preponderance of the evidence that he or she was a victim of human trafficking.
The court’s authority to set aside a conviction is a privilege, not a right. If the court determines that the circumstances and behavior of an applicant warrant setting aside the convictions and is consistent with the public welfare, then it MAY enter an order to that regard. Basically, the court must be convinced that you committed a one-time mistake but you have completely changed your ways for the better. Some judges may be stricter than others in granting this request. A skilled expungement lawyer can help you create an effective application with necessary supporting evidence to increase the chances that such a request will be granted. If you are considering an action to set aside a conviction, do not hesitate to contact the lawyers at Kershaw, Vititoe & Jedinak PLC.