When minors are found guilty, plead guilty, or plead no contest to crimes, they do not acquire a traditional adult misdemeanor or felony conviction (unless they were tried as an adult). These are instead known as juvenile adjudications and they can and do appear in public records that can be located in background checks. An individual applying for employment, college or professional licenses in the future may have to contend with explaining these juvenile adjudications that arise from making poor decisions as a child. Fortunately, there is a similar process for expunging juvenile adjudications in Michigan in the same manner as expunging an adult conviction.
ELIGIBILITY FOR EXPUNGING JUVENILE RECORDS
Pursuant to MCL 712A.18e(1), an individual can apply to set aside juvenile adjudications to the family division of the circuit court where the adjudications occurred. However, the individual must meet the following qualifications:
- The individual has no more than three eligible misdemeanor offenses on his or her juvenile adjudication record; OR
- The individual has no more than one single eligible felony and two eligible misdemeanor offenses on his or her adjudication record.
Multiple juvenile adjudications “arising out of a series of acts that were in a continuous time sequence of 12 hours or less and that displayed a single intent and goal” will be counted as ONE offense for the purpose of this expungement statute provided that none of the juvenile adjudications constitute any of the following:
- An assaultive crime.
- An offense involving the use or possession of a weapon.
- An offense with a maximum penalty of 10 or more years imprisonment.
Even if the above qualifications are met, there are some juvenile offenses that are not permitted to be set aside by the court:
- “An adjudication for an offense that if committed by an adult would be a felony for which the maximum punishment is life imprisonment.” MCL 712A.18e(2)(a).
- A conviction arising from designated proceedings where the juvenile was tried as an adult under MCL 712A.2d. However, this prohibition doesn’t prevent the individual from seeking a set aside of this designated offense under adult expungement proceedings. MCL 712A.18e(2)(b).
An individual cannot apply for expungement unless at least one year has passed since the family division of the circuit court relinquished their jurisdiction over the former juvenile. MCL 712A.18e(3). In addition, the applicant must not have been convicted of an adult felony offense. MCL 712A.18e(4)(d). Finally, the applicant cannot have any pending charges against them anywhere in the United States or in another country. MCL 712A.18e(4)(f).
HOW TO APPLY FOR JUVENILE EXPUNGEMENT
An individual seeking an expungement must complete and file JC 66 (Application to Set Aside Adjudication(s)) at the court where the juvenile adjudications occurred. The court will set a hearing date for this application to be heard. The individual must also complete the following before the hearing:
- The applicant must send a copy of the application and two complete sets of fingerprints to the state police so they can compare those fingerprints with their records. MCL 712A.18e(6). The state police must also forward a set to the FBI to compare their records as well. Id. The state police must report to the court any information about pending charges, any prior convictions or adjudications, and any prior adult or juvenile expungements. Id.
- The applicant must send a copy of the application to the prosecuting attorney and the attorney general’s office, who both have an opportunity to contest. MCL 712A.18e(7). If there was a victim, the prosecuting attorney must send notice to said victim who has an opportunity to appear at the hearing and make an oral or written statement. Id.
The court may also require the filing of affidavits and the taking of proofs as it considers proper to aid in making a determination. MCL 712A.18e(8).
The court may set aside eligible juvenile adjudications if it determines that the circumstances and behavior of the applicant warrant from the date of adjudication to the filing of the application warrant setting aside said adjudication and that setting aside the adjudication or adjudications is consistent with the public welfare. MCL 712A.18e(9). “If the applicant submits to the court a certificate of completion from the Michigan youth challeNGe academy showing that the applicant has completed that program, the court shall determine that the applicant’s circumstances and behavior warrant setting aside the adjudication.” Id.
Generally, the setting aside of a juvenile adjudication “is a privilege and conditional, and is not a right.” MCL 712A.18e(9). However, the court MUST set aside the following juvenile adjudications upon application if all of the requirements are otherwise met:
- A violation or attempted violation of MCL 750.413 (taking and driving away an automobile without permission. MCL 712A.18e(10)(a).
- A violation or attempted violation of MCL 750.448 (soliciting prostitution or immoral act), MCL 750.449 (admitting to place for purpose of prostitution), and MCL 750.450 (aiding or abetting in prostitution) if he or she committed the offense as a direct result of his or her being a victim of a human trafficking violation. MCL 712A.18e(10)(b).
WHAT IS THE EFFECT OF A JUVENILE EXPUNGEMENT?
The immediate effect of an order to set aside is that the applicant is considered not to have been previously adjudicated, so the individual no longer needs to disclose it on job or college applications. MCL 712A.18e(11). However, the individual is not entitled to a refund for any fines or costs paid during the original adjudication proceeding. MCL 712A.18e(11)(a). An order to set aside does not affect the right of a victim of a juvenile offense to prosecute or defend a civil action for damages. MCL 712A.18e(11)(c).
The juvenile adjudication record then becomes a non-public record, which is then available only to a court of competent jurisdiction, an agency of the judicial branch of state government, a law enforcement agency, a prosecuting attorney, the attorney general, or the governor upon request and only for the following purposes:
- Consideration in a licensing function conducted by an agency of the judicial branch of state government. MCL 712A.18e(13)(a).
- Consideration by a law enforcement agency if a person whose adjudication has been set aside applies for employment with the law enforcement agency. MCL 712A.18e(13)(a).
- To show that a person who has filed an application to set aside an adjudication has previously had an adjudication set aside. MCL 712A.18e(13)(c).
- The court’s consideration in determining the sentence to be imposed upon conviction for a subsequent offense that is punishable as a felony or by imprisonment for more than 1 year. MCL 712A.18e(13)(d).
- Consideration by the governor, if a person whose adjudication has been set aside applies for a pardon for another offense. MCL 712A.18e(13)(e).
An order setting aside a juvenile adjudication does not require the Michigan Secretary of State to remove or expunge the adjudication from the applicant’s driving record. MCL 712A.18e(17).
DOES YOUR JUVENILE ADJUDICATION QUALIFY FOR AUTOMATIC EXPUNGEMENT?
Effective July 3, 2023, several types of juvenile adjudications will be set aside without filing an application when 2 years have passed after the termination of court supervision or when the person becomes 18 years of age, whichever is later. MCL 712A.18t(1).
However, pursuant to MCL 712A.18t(2), the following juvenile adjudications will NOT be eligible for automatic expungement:
- An adjudication for an offense that if committed by an adult would be a felony for which the maximum punishment is life imprisonment.
- A conviction arising from designated proceedings where the juvenile was tried as an adult under MCL 712A.2d.
- First-degree arson. MCL 750.72.
- Assault with intent to commit murder. MCL 750.83.
- Assault with intent to maim. MCL 750.86.
- Assault with intent to rob while armed. MCL 750.89.
- Attempted murder. MCL 750.91.
- First-degree murder. MCL 750.316.
- Second-degree murder. MCL 750.317.
- Kidnapping. MCL 750.349.
- First-degree criminal sexual conduct. MCL 750.520b.
- Armed robbery. MCL 750.529.
- Carjacking. MCL 750.529a.
- Robbery of a bank, safe or vault. MCL 750.531.
- Assault with intent to do great bodily harm or assault by strangulation or suffocation (MCL 750.84) IF ARMED WITH A DANGEROUS WEAPON.
- First-degree home invasion (MCL 750.110a(2)) IF ARMED WITH A DANGEROUS WEAPON.
- Escape or attempted escape from a medium- or high-security facility operated by DHHS or county juvenile agency, or from a private agency contracted by DHHS or a county juvenile agency under contract to operate said facility. MCL 750.186a.
- Possession of 1000 grams or more of a Schedule 1 or 2 drug or cocaine. MCL 333.7402(2)(a)(i).
- Manufacture, creation, delivery, or possession with intent to manufacture, create or deliver 1000 grams or more of a Schedule 1 or 2 drug or cocaine. MCL 333.7401(2)(a)(i).
- Assault, aggravated assault or domestic violence. MCL 750.81a.
- Assault with a dangerous weapon. MCL 750.82.
- Sexual intercourse under pretext of medical treatment. MCL 750.90.
- First degree child abuse. MCL 750.136b.
- Manslaughter. MCL 750.321 and MCL 750.322.
- Mayhem. MCL 750.397.
- Stalking. MCL 750.411h.
- Aggravated Stalking. MCL 750.411i.
- Criminal Sexual Conduct – Third Degree. MCL 750.520d.
- Assault with Intent to Commit Criminal Sexual Activity. MCL 750.520g.
- Providing Material Support for Terrorism. MCL 750.543k.
If your juvenile record is not eligible for automatic expungement, the individual may still make an application to set aside the juvenile adjudication provided that all of the requirements are met for that process. A juvenile adjudication set aside by automatic expungement will have the same legal effect as an expungement that was set aside by way of application.
A LAWYER CAN HELP YOU EVERY STEP OF THE WAY
An individual seeking to expunge their juvenile record can retain the services of a lawyer for assistance. The lawyer can help you determine if your juvenile adjudications are eligible for expungement. Furthermore, the lawyer can represent you at the hearing and help you prepare evidence to assist the judge in making a determination in your favor. If either the attorney general, prosecuting attorney or victim oppose your application, then you will likely need to persuade the court by calling witnesses, presenting letters of support, or producing other documents that show that the individual today is a much different person than the individual who committed those crimes as a juvenile. Appearing in court can be intimidating, but a skilled lawyer in your corner can help you ensure that the process goes smoothly.
If you or a loved one have any 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.