The Criminal Expungement Process in Michigan
Being charged and adjudicated with a crime can be a life changing experience. One mistake in your life can directly affect whether or not you will get a job, be afforded credit and even gain certain types of employment. A criminal record may even prevent from obtaining subsidized housing or federal school loans. The long term effects can become devastating and make it seem impossible to ever move forward with any semblance of a normal life. If you have a criminal record, then you already know how difficult your life can be. Wouldn’t it be easier if you could erase your conviction altogether? Think about the ramifications of having a clear record. What if you could have a second chance?
Michigan’s expungement laws have been a topic of criminal reform for a long time. Now, in Michigan, the legislation has been expanded to include more people in the expungement eligibility process. The prior legislation was restrictive enough; the 2015 amendments to the law allow for those with specific types of convictions to also apply and regain a start in life. While the proponents for amending the legislation have much more that they want to see happen, this first amendment is a big step forward and will allow many more individuals who weren’t able to apply the opportunity to petition the court for an expungement, including a Grand Rapids expungement.
In the world in which we live, everything about our personal lives is available to virtually anyone with a computer and the knowledge of how to use it. With one click of a button, total strangers are able to access every single thing about you including names, former names, addresses and former addresses, credit scores, credit reports, driving records, and criminal records.
Sitting legislators looked at raw data about the criminal justice system in Michigan and the data spoke loudly to them. A massive effort to amend the current legislation began to unfold. Michigan spends one in five dollars on corrections efforts so lawmakers continue to look for strategies to efficiently, yet safely, reduce these costs. In the most recent session, the legislators took into consideration many different criminal justice reforms, including the process for expungement, or the sealing, of a criminal record. Because of strong opposition, only a few reforms were implemented with others continuing on hold. They continue to sit on the governor’s desk for future consideration. The current reforms to the legislation affecting the process for expungement make it possible for more people to have criminal records set aside.
Lawmakers in Michigan recognized the importance of having a criminal record in the life of an individual and have passed this reform legislation to allow certain crimes to be permanently expunged from a criminal record. If the goal is to rehabilitate a person through involvement in the criminal justice system, the belief is that, if a person is charged with a crime and does everything they are supposed to according to the sentence, then they should be allowed to go into the world and start fresh. Having a criminal record that follows you can make this seem possible.
Having your criminal records expunged means that the record is set aside. No one outside the court system, law enforcement agencies and certain government agencies has availability to your criminal records if the application for expungement is approved. After you have finished the terms of your sentence completely, and a judge agrees to expunge the record, your record will appear to be clean to anyone who looks at it. It will be as though you never had a record or ever committed a crime. “Ultimately, this means that individuals will have a chance at having criminal offenses removed from their record, thereby giving them a second chance,” said sponsoring Rep. Stacy Erwin Oaks, D-Saginaw. “That would then allow them to hopefully gain employment and even housing.” You would honestly be able to look at a potential employer and say that you have no criminal record. The only time that your previous record would become relevant is in the event that another crime was committed by you; in that case, your first crime could be used to increase your sentence for the second one as a repeat offender. If you check your record and there are still crimes listed, even after a judge has granted your request, contact an attorney immediately to assist you with the process.
The current law, MCL 780.621, has been amended to expand the parameters of expungement to also include many who could have not applied in the past; examples are those who have been convicted of a single felony and no more than two misdemeanors. After a period of five years from completing sentence requirements, probation or parole, the individual could petition the court for an expungement of the record entirely. Requesting the record to be expunged is always up to the discretion of the sitting judge, however. It is not an automatic process.
There is specific interest in the absence of expungement opportunities for traffic offenses. The legislation amendment is a significant step in terms of criminal reform. The new legislation offers hope for people convicted of many different crimes including and notably drug convictions. However, for people who have traffic convictions, traditional legal routes to expunge the records are not available. Certain traffic charges can be dismissed, dropped, and set aside for a variety of other reasons but it is much more difficult to expunge them because these types of crimes were excluded from Michigan’s specific expungement statute. In fact, there is no way currently to remove a prior conviction of OUI/OWI under Michigan’s expungement law.
If you decide to have your criminal record expunged, it is always best to allow an attorney to navigate these waters for you. Hire an attorney who has experience with expunging records and is completely apprised of the Michigan adult expungement laws which were amended as of January 12, 2015. There are many changes and many different specific details that only an experienced attorney would be able to handle competently. The new law allows many more people to have records expunged. For example, previously, an individual could only have a conviction expunged if that was the only one and no more than two minor offenses. Now, an individual can petition the court for expungement if there is only one felony conviction and no more than two misdemeanors. Also, an individual can petition the court to eliminate up to two misdemeanors if they are the only convictions.
Are you wondering if you’re eligible for an expungement? The following are general guidelines for you to consider. Of course, for specific answers regarding your case, consult an experienced attorney for advice. Every circumstance is different and your situation has details that may not be applicable to others. Your attorney is your best advocate when undertaking a process this important.
For example, if you have more than one conviction, either as an adult or a child, having your record expunged is not possible unless the prior convictions are misdemeanors and you have no more than two. Some traffic convictions such as speeding fines, are not considered as convictions. Other traffic offenses such as driving with a suspended license are considered to be misdemeanors. Your attorney will be your best source of information regarding your exact number of convictions. If you meet the criteria, you will be able to petition the court, but the judge always has the final say and will take each individual circumstance into account before making a decision.
If you were convicted of a felony or an attempt to commit a felony that requires reporting to the Secretary of State, you are not eligible for expungement, whether it was a traffic offense or not.
If you have a conviction but it has been less than five years since you completed the terms of your sentence, including probation or parole, you cannot get your record expunged yet. A period of five years has to pass before you can petition the court for eradication of your record. This also includes imprisonment. If you served time in a criminal justice facility, five years has to pass the from the date you were released and then you may be able to file for expungement of your records.
Specifically, there are convictions that can never be expunged under any circumstances. They include offenses for which the punishments is life imprisonment, second degree child abuse, any involvement with child pornography, second, third or fourth degree criminal sexual misconduct, a traffic offense that includes the operation of a motor vehicle while intoxicated, a second conviction of domestic violence even if the first was a misdemeanor, offenses involving human trafficking or terrorism offenses.
Your age is also a determining factor. If you are under 24, you cannot file a petition to have the record expunged yet even if five years has passed. You must be 24 years old before you can petition the court. The judge who originally sentenced you will be the same judge who will see you in court again.
If you’ve determined that you meet the eligibility criteria and want to move forward to have your criminal record cleared, the first thing you must do is file an application with the court. The judge who originally sentenced you will be the same judge who is asked to consider the petition. If you aren’t able to remember, you can always call the court and find out who it is or have your attorney do it for you.
While the process of expungement is relatively simple, it is always safer to have an attorney go through the process with you. An attorney will be aware of all of the details and loopholes and can advise you about the paperwork as well as the appropriate things to say while in court. You can be certain that your paperwork is filed completely and in a timely manner with the appropriate persons. An expungement has the ability to completely change your life allowing you easier access to federal funding, housing, employment, and a variety of other things. And, under the amended legislation, if you petition to have a conviction expunged and the petition is denied, you will be unable to file another one for a period of at least three years. It’s better to allow a professional to assist with the process than to try to do it on your own and make any mistakes. This is especially true of you still owe restitution, if your crime was of a serious nature, the offense affected your driver’s license, the state attorney objects to your application or the State Police claim that you aren’t eligible but you believe this to inaccurate.
When you file the application to petition the court, you will also need a current fingerprint card for the state police (which can be easily obtained from any law enforcement agency in Michigan); a $50 processing fee payable to the State of Michigan, a certified copy of your conviction record and the name and address of the prosecutor who tried your case. The fingerprints will cross checked against the records of the State Police as well as the FBI, or Federal Bureau of Investigation. Once the clearance has been obtained from both, you and your attorney can move forward. After the application is completed, you should file it and all other documentation with the court that tried your original case. The prosecutor, state police and attorney general should all receive copies of your paperwork for reference as well. An experienced attorney will know who needs what documents and will be able to easily find them and make sure that they receive all of it.
You will receive a hearing date where you will have an opportunity to approach the judge and request that your conviction be set aside. This plea with the judge should be completely honest and humble. It is your opportunity to convince the judge that you have not only completed the terms of your sentence but that you deserve the right to a clean start. It is always in your favor if you have not gotten into any additional trouble since your sentence. When the judge has looked at your entire circumstance and can see that you have been truly rehabilitated, which is the overall goal of the criminal justice system, he will make his determination at that time.
It is always possible that any victims of your crime as well as state law enforcement and members of criminal justice system could object to your application. Be prepared for this unpleasant circumstance by alerting your attorney to anyone who might possibly attend and who might oppose your applications. A victim of any crime will always feel victimized, even if your crime was involuntary so just allow the judge to hear what they have to say. The ultimate determining factor will not be who you were but who you are now and what you can contribute to society.
If the judge does grant your application for expungement, your attorney will make sure that records at every relevant agency are expunged. Your attorney may advise you to send these copies of the order to the state police, the department of corrections, and all other state and local agencies that may have your criminal record on file. Most likely, your attorney will take care of this process for you. It will generally take two to four weeks to remove the record from the state’s web access tool, the Internet Criminal History Access Tool, also known as ICHAT. Be sure that you check this site as well as checking with all of the local agencies where you sent the order to ensure that they removed it. Following up is only responsible and could save you from possible future issues that are unnecessary.
Michigan legislators and a large number of legal groups, including the State Bar of Michigan, the Prosecuting Attorneys Association and the Michigan Judges Association, are strongly in support of the amended legislation. Opponents claim that this move is soft on crime but according to Ingham County Circuit Judge Aquilina, “This is not a soft on crime bill. This tells you that the dollars you have spent, that you have allocated for rehabilitation, are working. It tells you that the message has been sent that your dollars for incarceration, your probation dollars, they worked. This person did everything they were supposed to, then they went out and changed their life. They deserve expungement.”
It is possible to have a life after crime. In the state of Michigan, many legal groups also believe this and are working diligently to create a system that punishes criminals but also allows them to work toward a second change in life. Unfortunately, there are many who choose a life of crime and know no other way. However, there are also many who make mistakes and want to pay for them and put them behind them. With the process of expungement in Michigan, is it possible for you to start over again.
If you’re interested in setting aside your criminal conviction, we would be happy to speak to you. You can reach us at 616-773-2945 .