Criminal Record Expungement
Having a criminal record can have lifelong negative effects on a wide range of things required for normal daily functioning, such as having gainful employment, finding quality housing and more. Oftentimes, this burden can be unfairly placed on individuals who otherwise are trying to improve their lives and function as productive members of society. In certain cases, these obstacles resulting from a criminal record can hold back individuals to the point where it plays a significant role in recidivism and pushing these individuals into a life of crime.
Luckily in Michigan there are multiple opportunities for expungements for people with previous criminal convictions. However there are several notable exceptions to when an expungement may be granted. These expungements are not automatically awarded, and working with an Michigan expungement attorney who is experienced in Michigan expungement law is required in order to achieve a successful outcome.
What is Eligible for Expungement
Both misdemeanor and felony convictions are eligible for expungement, depending on the nature of the offense. Certain offenses, such as sex crimes, criminal traffic infractions, or cases where the individual has multiple serious criminal convictions. Generally speaking, up to two minor criminal convictions are allowed before a court will bar an individual from expungement.
Additionally, individuals are ineligible for expungement if the offense in question carries with it the possibility of a life sentence. This is true even if the individual did not actually receive a life sentence. Usually these are very serious offenses, such as violent felonies and extreme white collar crimes.
Limits on Expungement
In addition to limits as to the type of charge that can be expunged, there are also time limits on when an expungement is allowed. In Michigan, this time period for individuals convicted of criminal offenses who wish to have these offenses expunged must wait a period of at least five years from either the conviction or their release from prison, whichever is later. After this time period, they are eligible to apply for their record to be expunged.
There are also limits based on the age of the offender. Adult offenders are eligible for only one prior conviction to be expunged off their record. Juveniles on the other hand may have their entire record expunged, including up to three prior convictions. However, juveniles are not eligible to have felonies expunged.
Under certain circumstances, there is the possibility that a court will consider having an adult conviction and prior juvenile convictions expunged for a single offender who has recently come of age. An attorney experienced in Michigan expungement law will be able to best advise if an individual is eligible for this.
Michigan’s New Expungement Law
If you manage to successfully expunge your record, information about that crime will be inaccessible to the public. This includes future employers, educational institutions, and even governmental agencies. A new law, which is effective in February 2022, will allow first-time offenders of operating-while-impaired crimes to be eligible for expungement. Expungement is subject to certain conditions.
Before the passage of this new law, the state’s expungement laws had been expanded to include more convictions that may be eligible for expungement. However, even with the recent expansion, drunk driving convictions remain ineligible for consideration for expungement purposes. Noting the serious implications and effects that a single drunk driving conviction can have on a person’s record, the Legislature decided to create a pathway to allow for the expungement of first-time convictions of alcohol or drug-related driving violations. Now, an estimated 200,000 Michigan offenders might be eligible to set aside their previous OWI conviction and have it expunged entirely from their record.
In addition to expanding the types of convictions that are eligible for expungement, this new law also created an automatic process for setting aside eligible misdemeanors after seven years and eligible non-assaultive felonies after ten years. Additionally, the new law permits a person to apply to set aside one or more marijuana misdemeanor offenses if the offense would not have been a crime if it were committed after recreational marijuana use by adults became legal in the state.
Why Was The MI Expungement Law Passed?
The enactment of this expanded “clean-slate” law was part of a broader criminal reform effort being applied across the U.S. Michigan is only the third state to pass automated record-clearing legislation and the first state to automatically clear qualifying applicants. The other two states that have passed automated record-clearing legislation are Pennsylvania and Utah. Other similar legislative measures have been enacted or introduced as bills in Connecticut, Washington, North Carolina, Louisiana, and New Jersey.
However, the new law is specific in that it excludes from eligibility of expungement violations involving drug or drunk driving offenses that resulted in death or serious impairment of a bodily function to another person. Additionally, the new law requires this to be the applying individual’s first-time offense. Also, the OWI offense cannot have been committed while operating a commercial motor vehicle. If any of the above apply to you, you would be ineligible to apply for expungement of your OWI offense.
What Crimes Are Eligible For Expungement Under The New Law?
The new law makes certain convictions eligible for expungement:
- Convictions for driving with a blood alcohol content at or above 0.08.
- Convictions for driving under the influence of any amount of schedule 1 controlled substances or cocaine.
- Convictions for driving while visibly impaired due to any substance.
- Convictions for allowing an intoxicated person to drive.
- Convictions for driving while under the age of 21 years of age with a blood alcohol content of 0.02 or higher.
It is important to note that this new law only allows for the expungement of a first OWI violation. It will not permit the expungement of a second OWI conviction. Additionally, you are only granted one expungement of this type of offense in a lifetime. Thus, if you have multiple subsequent OWI convictions, you will not be eligible for expungement of those convictions under this new law.
Under the new expungement law, the waiting period before applying to set aside an OWI conviction is three to five years after the latest of the following events: date of sentencing, completion of any incarceration term, or completion of any probation term. Applications may be submitted beginning on February 19, 2022. Keep in mind that if you obtain another conviction or have a pending criminal case during the three to five-year wait period, this could potentially disqualify you or cause you to have to wait longer before you can be eligible for expungement.
When Should I Start My Expungement Application?
It is never too early to start the process of preparing for your inevitable application for expungement. At the very least, you should understand the process and what to expect. First, you will likely need to order a copy of your criminal record from ICHAT. You will then need to get your fingerprints taken by your local police.
Once you have obtained requirements number one and two, you will then file your application with the court clerk. Copies of your application will then need to be mailed to the prosecutor, attorney general, and state police. The Court will then schedule you for a hearing on whether your application is denied or granted.
Although this process seems straightforward, you should not attempt to take on such an important leap by yourself. Instead, you should retain an attorney who can ensure your application is complete and accurate. An attorney can also represent you at all relevant court proceedings.
What Is Considered When Reviewing My Expungement Application?
Keep in mind that under the new law, the Court reviewing your application to set aside the conviction may consider whether you have benefited from rehabilitative or education programs. Specifically, the reviewing court will consider several different factors when making its decision, some of which include the following:
- Whether you participated in drug or alcohol rehabilitation.
- Whether you participated in educational programs.
- Whether you have maintained a safe driving record since your conviction.
- Whether you were charged with any other crimes since your conviction.
If your application is granted, your public record will no longer reflect your OWI conviction. For instance, when you apply for a job, housing, or student aid and are asked to disclose your criminal past, you are entitled to answer “no.”
Future issues may arise, though, as the new law makes clear that the traffic offense associated with the OWI will not be removed from a petitioner’s Secretary of State driving record. This, in turn, begs the question of whether, even though the OWI conviction has been expunged from your criminal history, law enforcement and prosecuting officials can use the offense that would remain on your driving record to enhance a future OWI charge.
There are methods of improving your chances for expungement. The following suggestions are likely to look favorable to the reviewing court that determines your fate:
- Enter a driver training program.
- Complete a drug or alcohol treatment program.
- Participate in community service.
- Avoid any criminal activity.
Remember, the whole point of expungement under this new law is to give you another chance. By showing the Court that you have taken the initiative and are making moves to better yourself and not re-offend, you are proving to the Court that you are the type of petitioner this new law was enacted for.
If you or someone you know is interested in discussing how you can get your OWI conviction expunged under this new law, call our office today for a free consultation.
As mentioned previously, it is important to work with an attorney specializing in Michigan expungement law in order to successfully have a record expunged. Since expungements are not automatic, it is up to the offender to convince the court that the expungement is appropriate and justified for their circumstances, and assure them that future convictions are unlikely to occur.
The attorneys at George Law have decades of combined experience working with clients on their criminal record expungement cases. Our expert expungement attorneys will analyze your case and pursue the best course of action to ensure the best possible outcome. If you are in need of an attorney to work with you regarding expunging a conviction from your record, please contact our office today to see how we can help.