Michigan’s “Clean Slate” Laws: How Can Criminal Convictions Be Wiped Away?

 

On October 12, 2020, Gov. Gretchen Whitmer signed a package of seven bills into law that have been collective known as the “Clean Slate” legislation.  The purpose of these new provisions is to expand the eligibility for people convicted of crimes to expunge their records and get a fresh state.  Under current law, a person convicted of a single felony offense may petition the convicting court to “set aside” the conviction five years after imposition of sentence or release from prison, whichever is later, as long as the applicant has no more than two prior “misdemeanors.”  MCL 780.621(1)(a).  In addition, a person convicted of “not more than 2 misdemeanor offenses and no other felony or misdemeanor offenses may petition the convicting court or the convicting courts to set aside 1 or both of the misdemeanor convictions.”  MCL 780.621(1)(b).  However, there are still several barriers that can prevent an expungement from being granted.  Multiple charges in a single case are counted as separate convictions, so two felony convictions in one transaction is an automatic disqualification.  A conviction of an felony (or attempt to commit any felony) that is punishable by life in prison is ineligible to be set-aside, as are certain traffic offenses and sex offenses.  MCL 780.621(3).

Prior to “Clean Slate” litigation, a person is eligible to file an application for expungement for an eligible conviction with the convicting court once 5 or more years have passed since the sentence was imposed, or since imprisonment was completed, or since the offender was charged from probation or parole (whichever happens last).  MCL 780.621(5).  The applicant must send a copy of the application and one complete set of fingerprints to the state police so they can confirm the completeness of records.  MCL 780.621(9).  A copy must also be served on the prosecuting attorney, the attorney general and the victim.  MCL 780.621(10).   If objected to, the application may be subject to affidavits being filed or proofs being taken by the court.  MCL 780.621(12).  “If the court determines that the circumstances and behavior of an applicant… from the date of the applicant’s conviction or convictions to the filing of the application warrant setting aside the conviction or convictions, and that setting aside the conviction or convictions is consistent with the public welfare, the court may enter an order setting aside the conviction or convictions.”  MCL 780.621(14).

Effective April 10, 2021, the “Clean Slate” legislation modifies and supplements the expungement statutes as follows:

 

PUBLIC ACT 191 OF 2020 (House Bill No. 4984): Amends Section 1 of MCL 780.621 to expand petition-based eligibility to an unlimited number of misdemeanors and up to three felonies:

• A person can apply to expunge up to three felonies, but a person cannot have more than 2 assaultive crimes set aside. Amended MCL 780.621(1)(b).

• In addition, a person cannot have more than one felony conviction for the same offense set aside if the offense is punishable by more than 10 years imprisonment. Amended MCL 780.621(1)(c).

• The procedures for seeking expungement and the extent of relief granted remain the same.

 

PUBLIC ACT 188 OF 2020 (House Bill No. 4985): Adds MCL 780.621b to provide multiple offenses in a single transaction can be counted as one offense:

• For the purpose of counting convictions eligible for expungement, crimes in the same 24-hour period arising from the same transaction are counted as a single offense. MCL 780.621b(1).

• This rule does not apply if any of the felony or misdemeanor offenses within the 24-hour period constitute an assaultive crime, a crime involving the use or possession of a dangerous weapon, a crime with a maximum penalty of 10 years or more in prison, or a conviction for a crime that if it had been obtained in this state would be for an assaultive crime. MCL 780.621b(1)(a)-(d).

 

PUBLIC ACT 187 OF 2020 (House Bill No. 4981): Adds MCL 780.621c to provide that expungement is NOT available for the following offenses:

• No expungement for felonies where the maximum penalty is life imprisonment or an attempt to commit a felony where the maximum penalty is life imprisonment. MCL 780.621c(1)(a).

• No expungement for child abuse in the second degree (MCL 750.136b(3)), possession of child sexually abusive material (MCL 750.145c), use of computer to commit sex crimes (MCL 750.145d), criminal sexual conduct in the second degree (MCL 750.520c), criminal sexual conduct in the third degree (MCL 750.520d), or assault with intent to commit sexual conduct (MCL 750.520g). MCL 780.621c(1)(b).

• No expungement for criminal sexual conduct in the fourth degree (MCL 750.502e) if the offense occurred on or after January 12, 2015. MCL 780.621c(1)(c).

• No expungement for a conviction for operating while intoxicated by any person, a traffic offense committed by an individual with an endorsement on his or her operator’s or chauffeur’s license to operate a commercial motor vehicle was actually operating the commercial motor vehicle, and for any traffic violation that causes injury or death. MCL 780.621c(1)(d).

• No expungement for a felony conviction of domestic violence, if the person has a prior misdemeanor conviction for domestic violence. MCL 780.621c(1)(e).

• No expungement for a conviction related to bondage or forced labor (MCL 750.462a through MCL 750.462h) or a conviction related to a terrorist act (MCL 750.543a through MCL 750.543z). MCL 780.621c(1)(f).

• An order setting aside a traffic offenses cannot require that the offense be removed or expunged from the applicant’s driving record maintained at the Michigan Secretary of State. MCL 780.621c(3).

 

PUBLIC ACT 190 OF 2020 (House Bill No. 4983): Adds MCL 780.621d to provide new waiting periods for applicants seeking to set aside a conviction:

• An applicant seeking to set aside MORE THAN ONE FELONY can only be filed once 7 or more years have passed since the sentence was imposed, since imprisonment was completed, or since the offender was charged from probation or parole (whichever happens last). MCL 780.621d(1).  This application cannot be granted if there are any pending criminal charges against the applicant or any criminal offenses occurred within the waiting period.  MCL 780.621d(4).

• An applicant seeking to set aside ONE OR MORE SERIOUS MISDEMEANORS OR ONE OR ONE FELONY can only be filed once 5 or more years have passed since the sentence was imposed, since imprisonment was completed, or since the offender was charged from probation or parole (whichever happens last). MCL 780.621d(2).

• “Serious misdemeanors” mean one or more violations of MCL 750.81 (assault and battery and domestic violence), MCL 750.81a (aggravated assault or aggravated domestic violence), MCL 750.115 (illegal entry), MCL 750.136b(7) (child abuse in the fourth degree), MCL 750.145 (contributing to delinquency of a minor), MCL 750.145d (using the internet or computer to make a prohibited communication), MCL 750.233 (intentionally aiming a firearm without malice), MCL 750.234 (discharge of firearm intentionally aimed at a person), MCL 750.235 (discharge of accidentally aimed firearm resulting in injury), MCL 750.335a (indecent exposure), MCL 750.411h (stalking), MCL 257.601b(2) (injuring a worker in a work zone), MCL 257.617a (leaving the scene of a personal injury accident), MCL 257.625 (operating a vehicle while intoxicated, under the influence or visibly impaired), MCL 436.1701 (selling or furnishing alcohol to a minor), or a violation of a local ordinance similar to any of these offenses. MCL 780.811(10(a).

• An applicant seeking to set aside ONE OR MORE NON-SERIOUS MISDEMEANORS can only be filed once 3 or more years have passed since the sentence was imposed, since imprisonment was completed, or since the offender was charged from probation or parole (whichever happens last). MCL 780.621d(3).

• If a petition is denied, then the person cannot file another petition concerning the same convictions until 3 years after the date that court denied the previous petition. MCL 780.621d(4).

 

PUBLIC ACT 192 OF 2020 (House Bill No. 4982): Adds MCL 780.621e to provide a process for the expungement of one or more “misdemeanor marijuana offenses”:

• “Misdemeanor marijuana offenses” means a violation for possession of marijuana (MCL 333.7403(2)(d)), use of marijuana (MCL 333.7404(2)(d)), a marijuana paraphernalia violation (MCL 333.7453), or a similar local ordinance. MCL 780.621e(7).

• Beginning on January 1, 2020, a person convicted of a misdemeanor marijuana offense can apply to set aside the conviction. MCL 780.621e(1).

• “A rebuttable presumption that a conviction for a misdemeanor marihuana offense sought to be set aside by an applicant was based on activity that would not have been a crime if committed on or after December 6, 2018 arises upon the filing of an application. [This presumption] may be rebutted by the presentation of evidence by the prosecuting agency that prosecuted the case that demonstrates by a preponderance of the evidence that the conduct on which the applicant’s conviction was or convictions were based would constitute a criminal violation of the laws of this state or a political subdivision of this state if it had been committed on or after December 6, 2018. An answer made [by the prosecuting agency] must be filed no later than 60 days from the date of service of the application. If an answer is filed with the convicting court, the answering party must serve the answer upon the other parties to the matter.” MCL 780.621e(4).

• “Upon the expiration of the 60-day period…, if the prosecuting agency has not filed an answer to the application addressing the rebuttable presumption…, the convicting court must within 21 days enter an order setting aside the conviction or convictions and serve a copy of the order upon the applicant, the arresting agency, the prosecuting agency, and the department of the state police.” MCL 780.621e(5).

• “If the prosecuting agency files an answer addressing the rebuttable presumption…, the convicting court must promptly set the matter for a hearing no later than 30 days from its receipt of the answer, and serve a notice of the hearing upon the applicant. At the hearing, the prosecuting agency must prove by a preponderance of the evidence that a conviction or convictions sought to be set aside by an applicant were based upon conduct that would constitute a criminal violation of the laws of this state or a political subdivision of this state if it had been committed on or after December 6, 2018. An applicant is not required to present evidence that his or her conviction was based upon conduct that would not constitute a criminal violation of the laws of this state or a political subdivision of this state on or after December 6, 2018. The evidentiary burden… rests solely on the objecting prosecuting agency. After a hearing…, the court shall enter an order denying or granting the application no later than 14 days after completion of the hearing and serve any written opinions and orders, including an order setting aside the conviction or convictions, upon the parties, including the department of state police. The rules of evidence do not apply to [this] hearing.” MCL 780.621e(6).

 

PUBLIC ACT 189 OF 2020 (House Bill No. 5120): Adds MCL 780.621f to provide for a rehearing or appeal on a denied petition to set aside a “misdemeanor marijuana offense” and provide limitations if such a petition is granted:

• “If an application to set aside a conviction or convictions is granted under [MCL 780.621e], the applicant may not thereafter seek resentencing in another criminal case the applicant was sentenced for during which the conviction or convictions at issue were used in determining an appropriate sentence for the applicant, whether or not the setting aside of the conviction or convictions would have changed the scoring of a prior record variable for purposes of the sentencing guidelines or otherwise.”

• “A party aggrieved by the ruling of the convicting court considering an application under [MCL 780.621e] may seek a rehearing or reconsideration under the applicable rules of the convicting court or may file an appeal with the circuit court or, if applicable, the court of appeals in accordance with the rules of those courts.”

• “The setting aside of a conviction under [MCL 780.621e] does not entitle the applicant to the return of any fines, costs, or fees imposed as part of the applicant’s sentence for the conviction or convictions or of any money or property forfeited by the prosecuting agency or any law enforcement agency as a result of the conduct leading to the conviction or as a result of the conviction itself.”

 

PUBLIC ACT 193 OF 2020 (House Bill No. 4980): Adds MCL 780.621g and MCL 780.621h to provide for the automatic expungement of certain criminal offenses after a certain period of time without application:

• Effective April 11, 2023, an unlimited number of “minor misdemeanors” (maximum penalty is 92 days or less in jail) would be expunged automatically seven years after imposition of sentence during the offender’s lifetime. MCL 780.621g(1).

• Effective April 11, 2023, up to four misdemeanors (maximum penalty of 93 days to one year in jail) would be expunged automatically seven years after imposition of sentence during the offender’s lifetime. MCL 780.621g(4).

• Effective April 11, 2023, up to two felonies (assuming they would have been eligible for expungement upon application) would be expunged automatically ten years after imposition of sentence during the offender’s lifetime. MCL 780.621g(2).

• Automatic expungement is not available for non-minor misdemeanors or felonies if there are criminal charges pending, if there was a conviction for any criminal offense during the waiting period, or the offender has a conviction for one or more assaultive crimes. MCL 780.621g(6)-(7).

• Automatic expungement does not apply to an assaultive crime, a serious misdemeanor, a crime of dishonesty, an offense punishable by 10 or more years in prison, or a felony conviction whose elements involve a minor, vulnerable adult, injury, serious impairment or death. MCL 780.621g(10).

• A conviction set aside by automatic expungement can be reinstated if it is determined that the conviction was improperly or erroneously set aside or, “[u]pon a motion by a person owed restitution, or on its own motion, the court shall reinstate a conviction that was set aside… for which the individual whose conviction was set aside was ordered to pay restitution if the court determines that the individual has not made a good-faith effort to pay the ordered restitution.” MCL 780.621h.

 

If you were not eligible for an expungement of your criminal record under the previous rules, then you should consider consulting with a skilled criminal defense lawyer to see if you now qualify under the “Clean Slate” litigation.

If you have further questions about Michigan’s expungement laws or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.