Expungement

Grand Rapids Expungement Attorneys

Being charged with a crime is serious and can have harsh consequences. Increasingly, those with misdemeanor or felony charges face issues such as finding a job, getting a promotion, renting an apartment or home, receiving a state-required professional license, or even participating in volunteer activities at their child’s school or other volunteer opportunities. Background checks are becoming commonplace, and if you have a criminal record, someone is apt to find that record and leave you sidelined as a second-class citizen.

The good news is that the State of Michigan has provisions for expunging, or “setting aside” many offenses that appear on a criminal record. While historically there has been a provision for expungement in Michigan law, the provision has been significantly changed.

The Clean Slate Legislation was signed into law, and went into effect as of April 11, 2021, with an expanded ability to petition for expungement of criminal records. In addition, beginning in April 2023, the expungement of many criminal records will become automatic according to the law, however, the speed and rate at which this will occur is based on government funding and state workers assigned to the project.

The Clean Slate Legislation:

This is a package of 7 bills; including HB 4980, HB 4981, HB 4982, HB 4983, HB 4984, HB 4985 and HB 5120. Combined they provide for sweeping changes to the way criminal records are kept and set aside. Whereas prior to April 11, 2021, the expungement process was limited, the new laws allow for more liberal setting aside. Crimes that were not able to be expunged such as any and all traffic offenses and other classes of crimes excluded previously may now be eligible. In the past, expungement was limited to 1 felony and/or 2 misdemeanor convictions. Now, expungement applies to those with no more than 3 felonies and no limit on the misdemeanors (however only two “assaultive crimes” may be set aside in a lifetime per MCL 780.621(1)(b)).

What is the current process?

Beginning on April 11, 2021 and continuing at least through April, 2023, the new laws allow for expanded eligibility in the number of crimes and type of offenses eligible for you to petition for expungement. The crimes that may now be expunged include:

First-time OWI/DUI (Operation While Intoxicated/Impaired) offenses—if this is a person’s first and only OWI/DUI arrest and conviction, if the OWI/DUI did not involve injury or death, and with a waiting period of 5 years. You can only receive one OWI/DUI expungement in your lifetime. Further, the OWI/DUI offense only comes off your criminal record, not the driver record with Secretary of State.

Marijuana Misdemeanor Offenses—you may petition for expungement of any adult Marijuana Misdemeanor offense after the April 11, 2021, implementation of the new laws; however, you can also petition for expungement of any prior convictions that would not have been a crime after the voter-approved legalization of recreational marijuana, which went into effect December 6, 2018. These prior convictions will be treated as if they occurred under the new law. The prosecutor has the burden of proof to show that the rebuttable presumption of expungement must be overturned in your case. The prosecutor must prove, by a preponderance of the evidence, that the activity would have been a criminal violation if committed on or after December 6, 2018.

Without a prosecutor seeking to overturn the rebuttable presumption, your expungement for marijuana misdemeanor offenses will go through without a hearing. The Judge will issue an order of expungement of the marijuana charges and mail a copy to the applicant.

Other Crimes—you may petition the court to set aside any and all other offenses including up to 3 felonies plus misdemeanors with some restrictions (ex. only two “assaultive crimes” may be set aside in a lifetime per MCL 780.621(1)(b). The law does include a list of offenses that cannot be expunged including such things as many sexual conduct crimes, any terrorism-related crimes, DUI other than first offense or that includes injury or death, and so on.

The laws also include a “One Bad Night” provision, MCL 780.621b(1), which provides for several offenses, whether felony or misdemeanor, to be treated as a single offense if they occurred and the convictions were based on crimes that all happened within a 24 hour timeframe. Again, there are some exceptions to this provision which include the more serious offenses.

Be aware that an application for expungement is subject to waiting periods. Generally:

• Multiple felonies: 7 years must have passed from the date of discharge of probation, parole, jail, or sentence, whichever is longer.
• Single felony and/or “serious” misdemeanors: 5 years must have passed from the date of discharge of probation, parole, jail, or sentence, whichever is longer.
• One or more misdemeanors: 3 years must have passed from the date of discharge of probation, parole, jail, or sentence, whichever is longer.
• Misdemeanor Marijuana: no waiting period. There is a presumption that the crime be expunged absent a showing by the prosecutor otherwise.
• Conviction for prostitution related offenses: no waiting period.
• Reapplication after denial of application for expungement: 3 years from date of last hearing, unless the court set a shorter period at that last hearing.

Also, an applicant can have no active criminal charges pending while applying for expungement. In addition, an applicant cannot owe restitution for any crime he or she seeks to set aside.

What do I need to do for the Expungement?

Currently, and until April, 2023, you have to file a petition with the court in order to have your conviction(s) set aside. You must first check your criminal record, to assess which convictions are a part of your record. You need to make sure that you have remained free of any convictions whatsoever for the appropriate number of years since your last conviction. The amount of time varies depending on what the crime was, how many crimes you wish to expunge, and whether they are felonies, misdemeanors or a combination of the two. You then need to see if your offenses are eligible for expungement, including whether the required amount of time has passed.

If you qualify for expungement, you will need to follow several steps.

1. Fill out an application form and submit it to the court along with:
1. Obtain a record of the conviction from the court where the conviction occurred;
2. Be fingerprinted by the police department, and submit the fingerprints;
2. File the application, a certified copy of the record of conviction, along with the requisite number of copies with the court clerk of the court where the conviction occurred.
3. Ask about the process for obtaining a hearing—the court may set it or you may need to formally request a date.
4. Obtain a money order for $50.00.
5. Mail or deliver the copies of the application file to the Michigan State Police, along with the fingerprints and the $50.00. fee (see MCL 780.621d(8)–(9)). You must also mail a copy of the file to the Michigan Attorney General (see MCL 780.621d(10)), and a copy of the file to the prosecutor’s office in the county where you were originally convicted.
6. Prepare a Proof of Service and file it with the court.
7. Prepare an Order On Application to Set Aside Conviction.
8. Attend your hearing. Be sure to carefully prepare for this hearing. The judge does not have to grant the expungement. You may need to show how you have improved and/or changed your life since the conviction. If there is a victim, they will receive notice of the hearing and may choose to show up. The original prosecutor may oppose the set aside. Do not assume that it is an automatic process.
9. Follow up on the court’s decision. Make sure that if you granted an expungement, that your record is actually cleared.

How long does the expungement process take?

The entire process will likely take several months. Court processes take time. Recall also that COVID-19 resulted in courts working remotely and many hearings being postponed. There is still a long backlog of cases in many courts. The echoes of these delays may be felt for some time.

Are there crimes that cannot be expunged?

The answer is yes, there are crimes that are not eligible for expungement. The list of exceptions is somewhat complicated. You may want to consult with an attorney to see if your unique situation qualifies for expungement. However, broadly speaking if the maximum punishment for the crime was life, the crime cannot generally be expunged. Many sexual crimes against children, CSC, etc., cannot be expunged either. Again, consult MCL 780.621 for a more detailed analysis of the exceptions to expungement.

How will my situation be improved or changed with an expungement?

Once your convictions(s) are set aside, they no longer show up on the public record. Your employer, landlord, or volunteer organization, for example, will not see those offenses when they run a background check on you. You no longer have to state that you were convicted of a crime. This will be life-changing for things such as employment, receiving a professional license, applying for a student loan, or obtaining housing. However, they do remain part of your permanent record, which the court and county prosecutors can access. Any traffic offenses remain on the Secretary of State records as well. (note: certain state professional licenses still require disclosure of expunged convictions). Expungement of a criminal record may even allow you to again obtain your right to bear arms (gun rights).

How does Automatic Expungement in 2023 Work?

Sometime after April of 2023, the laws provide for the expungement process to become automatic. The convictions will be set aside when the respective waiting periods expire without the need for you to file the petition(s) for the records to be expunged. However, there are limitations as follows:

• Automatic expungement only applies to less than: 2 felonies and 4 misdemeanors (93-day misdemeanors).
• Classification limitations: No more than one (1) assaultive crime or attempted crime (See MCL 780.621g(5)).

The waiting periods for automatic expungement are as follows:

• Felonies: 10 years need to have passed from the date of discharge of probation, parole, jail, or sentence, whichever is longer.
• Misdemeanors: 7 years need to have passed from the date of discharge of probation, parole, jail, or sentence, whichever is longer.

Further, automatic expungements to do not apply to:

• Two assaultive crimes (See MCL 780.621(4))
• Serious misdemeanors (ex. assault and battery)
• MCL 780.811(1)(a)(i)-(xvii). (This list includes things like assault and battery, contributing to the delinquency of a minor, using a computer for a prohibited communication, and other various violations.)
• Under MCL 780.811(1)(a)(xviii), a serious misdemeanor that is pleaded down to a misdemeanor is still categorized as a serious misdemeanor.
• Crimes of dishonesty (MCL 780.621(g)(15).
• Generally, counterfeiting and forgery, racketeering, embezzlement, computer fraud, and hacking.
• Crimes punishable by more than 10 years of imprisonment
• Violations listed in the sentencing guidelines, MCL 777.1–.69, that involve a minor, a vulnerable adult, serious impairment, or death as an element of the offense;
  human trafficking violations;
• Any attempt of the above-listed crimes.

Note that when applying to set aside a conviction (expungement), there is no limit to the number of misdemeanors nor are the waiting periods for applying to expunge a misdemeanor as long as they are for felonies, or combinations of misdemeanors and felonies, with the shortest for misdemeanors set at 3 years. Further, many of the crimes that do not qualify for automatic expungement, such as crimes of dishonesty, do qualify for expungement by direct petition.

The bottom line is that you can wait for automatic expungement, but you might be better served petitioning right away to resolve a criminal record that could otherwise hold you back for many more years. This is especially true if there is any concern that your charge may not go through the automatic expungement process due to technicality or inapplicability to the auto expungement program.

This process sounds complicated. Can I do this myself?

Yes, you can. If you have a good handle on how to manage the legal system, there are resources available for you to use. You may, however, find that an experienced legal team will help you navigate the court system, save time, and increase the probability of a positive legal outcome.

At Van Den Heuvel Law Office, our attorneys are experienced in setting aside and expunging criminal records. The attorneys at Van Den Heuvel Law Office always brief the legal issues surrounding expungement so that the court knows that it can grant the expungement. Because they are in court, in contact with prosecutors, and in hearings with Judges in many counties on a regular basis, they are familiar with the process and can help you navigate the court system as efficiently and smoothly as possible. Contact the Van Den Heuvel Law office for a consultation on whether you should pursue an expungement.