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First-Time Operating While Intoxicated Offenses Are Now Eligible For Expungement In Michigan

by | Sep 13, 2021 | Criminal Procedure, DUI Offenses |

 

On August 23, 2021, Gov. Gretchen Whitmer signed Public Act 79 of 2021 into law which further expanded the expungement rules for setting aside criminal convictions in Michigan.  Now a person may have the opportunity to expunge and eliminate a first-time operating while intoxicated offense from his or her criminal record.  This blog article provides the necessary information on this new law:

 

WHAT OPERATING WHILE INTOXICATED OFFENSES ARE ELIGIBLE?

According to MCL 780.621(4)(d), “[f[irst violation operating while intoxicated offense” means a violation of any of the following committed by an individual who at the time of the violation has no prior convictions for violating MCL 257.625 of the Michigan Vehicle Code –

  • Operating While Intoxicated and Operating With High BAC (“Superdrunk Law”). MCL 257.625(1).
  • Authorizing or Permitting Intoxicated Person to Operate Motor Vehicle. MCL 257.625(2).
  • Operating While Visibly Impaired. MCL 257.625(3).
  • Operating With Any Bodily Alcohol Content Under Age 21. MCL 257.625(6).
  • Operating With Any Schedule 1 or Schedule 2 Controlled Substance in System. MCL 257.625(8).
  • A local ordinance substantially corresponding to a violation listed above.
  • A law of an Indian tribe substantially corresponding to a violation listed above.
  • A law of another state substantially corresponding to a violation listed above.
  • A law of the United States substantially corresponding to a violation listed above.

 

WHAT OPERATING WHILE INTOXICATED OFFENSES ARE NOT ELIGIBLE?

The following are operating while intoxicated offense which are not eligible for expungement:

  • A second or subsequent offense for operating while intoxicated, operating with high BAC, authorizing or permitting intoxicated person to operate a motor vehicle, operating while visibly impaired, operating with any bodily alcohol content under age 21, and operating with any Schedule 1 or Schedule 2 controlled substance in system.
  • ANY operating while intoxicated offense under MCL 257.625 that is NOT a “first-time operating while intoxicated offense”. MCL 780.621(4)(h).  This includes all of the following:
    • Operating While Intoxicated Causing Death. MCL 257.625(4).
    • Operating While Intoxicated Causing Serious Impairment of Bodily Function. MCL 257.625(5).
    • Child Endangerment. MCL 257.625(7).
    • Operating A Commercial Vehicle With Unlawful Bodily Alcohol Content. MCL 257.625m.
    • A local ordinance substantially corresponding to a violation listed above.
    • A law of an Indian tribe substantially corresponding to a violation listed above.
    • A law of another state substantially corresponding to a violation listed above.
    • A law of the United States substantially corresponding to a violation listed above.

 

WHAT ARE THE RULES FOR SETTING ASIDE A “FIRST VIOLATION OPERATING WHILE INTOXICATED OFFENSE?”

Effective February 23, 2022, a “first violation operating while intoxicated offense” may be set aside under the expungement statute.

An application to set aside a first violation operating while intoxicated offense shall only be filed in the convicting court 5 or more years after whichever of the following events occurs last:

  • “Imposition of the sentence for the conviction or convictions that the applicant seeks to set aside.” MCL 780.621d(2)(a).
  • “Completion of probation imposed for the conviction or convictions that the applicant seeks to set aside.” MCL 780.621d(2)(b).
  • “Discharge from parole imposed for the conviction that the applicant seeks to set aside, if applicable.” MCL 780.621d(2)(c).
  • “Completion of any term of imprisonment imposed for the conviction or convictions that the applicant seeks to set aside.” MCL 780.621d(2)(d).

The applicant must fully complete and file MC 228 (Order on Application to Set Aside Conviction) at the court where the first-time operating while intoxicated offense conviction occurred.  A “first violation operating while intoxicated offense” is NOT eligible to be set aside automatically without application under the “Clean Slate” laws.  MCL 780.621c(3).  “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 by either of those entities, the application may be subject to affidavits being filed or proofs being taken by the court.  MCL 780.621(12).

“In making a determination whether to grant the petition to set aside a first violation operating while intoxicated offense conviction the reviewing court may consider whether or not the petitioner has benefited from rehabilitative or educational programs, if any were ordered by the sentencing court, or whether such steps were taken by the petitioner before sentencing for the first violation operating while intoxicated offense conviction he or she is seeking to set aside. The reviewing court is not constrained by the record made at sentencing. The reviewing court may deny the petition if it is not convinced that the petitioner has either availed himself or herself of rehabilitative or educational programming or benefited from rehabilitative or educational programming he or she has completed.”  MCL 780.621c(4).

However, an order setting aside a conviction for a traffic offense (including “first violation operating while intoxicated offenses”) does “not require that the conviction be removed or expunged from the applicant’s driving record maintained by the Michigan Secretary of State.”  MCL 780.621c(5).  This means that any license suspension or points assessed will remain on your driving record and the applicant will still have to go through the normal administrative channels to fully restore your driver’s license.

 

SHOULD YOU APPLY TO SET ASIDE YOUR FIRST TIME DUI OFFENSE?

In the old days, an operating while intoxicated offense used to be punished with one night in jail and a fine.  However, in recent decades, the Michigan Legislature has radically increased punishment for these kinds of offenses with huge court costs, lengthy probation, possible jail, and severe license sanctions.  Even long after the sentence is served and the fines/costs are paid off, your car insurance rates have skyrocketed and the DUI offense on your record is stigmatizing.  This conviction will appear on background checks for every job, housing opportunity and background clearance that you apply for.  Now, with the advent of this new legislation, you can get a new lease on life and remove your one-time DUI offense from your criminal record forever and start over.

You can be sure that a judge reviewing this type of set aside request will scrutinize it carefully.  You will have to put on a compelling case that your DUI offense was a one-time mistake and you have changed your ways permanently.  Our law firm has been successful in setting aside many criminal convictions in the past and we are available to put our experience to work for you.  Don’t risk your expungement request to an attorney with less experience or else your request may be denied.  “If a petition under this act is denied by the convicting court, a person shall not file another petition concerning the same conviction or convictions with the convicting court until 3 years after the date the convicting court denies the previous petition, unless the court specifies an earlier date for filing another petition in the order denying the petition.”  MCL 780.621d(5).

If you or a loved one have questions about expunging your criminal record or need legal representation, then do not hesitate to contact the skilled lawyers at Kershaw, Vititoe & Jedinak for assistance today.

 

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