With the passing of the Clean Slate Act and the introduction of expungement fairs across the state, applications to set aside convictions are on the rise.1 This article highlights the statute governing the requirements for setting aside convictions and recent changes impacting those wishing to obtain an expungement in Michigan.2 Because setting aside a conviction is a privilege and not a right, knowing the ins and outs is important to a successful application.3
In general, statutes such as the expungement statute, which are remedial in nature, should be liberally construed in favor of its remedial policy.4 When determining whether to enter an order setting aside a conviction, courts must look at the circumstances and behavior of the applicant from the date of the conviction to the filing of the application.5 This is balanced against determining whether setting aside the conviction is consistent with the public welfare.6 Importantly, the nature of the offense itself does not preclude the setting aside of an applicant’s record.7
THE BASICS
Under the expungement statute, a person convicted of one or more offenses but not more than a total of three felony offenses may apply to have all of his or her convictions set aside.8 However, a person cannot have more than two convictions for assaultive crimes set aside, and a person can only have one felony conviction for the same offense set aside if that offense is punishable by more than 10 years imprisonment.9 An example of the latter is if a person was convicted in 2000 for delivering or manufacturing a schedule 1 controlled substance in an amount of 50 grams or more but less than 450 grams and a 2010 conviction for that same offense, only one of those convictions may be expunged because it is a felony punishable by not more than 20 years imprisonment.10
Eligible offenses must also satisfy the various waiting periods mentioned in the statute. For an application to set aside more than one felony, the person must wait at least seven years after whichever event occurs last — imposition of the sentence, completion of probation, discharge from parole, or completion of a term of imprisonment.11 For an application to set aside one or more serious misdemeanors, one first-violation operating while intoxicated offense, or one felony conviction, the person must wait five years.12 Serious misdemeanors are defined by statute.13 Finally, a person applying to set aside one or more misdemeanors not classified as serious, assaultive, or a first-violation operating while intoxicated offense must wait at least three years after the imposition of the sentence, completion of any term of imprisonment, or completion of probation.14
A new change under the Clean Slate Act is the “one bad night” rule, where more than one offense must be treated as a single conviction if all of the offenses occurred within 24 hours and arose from the same transaction.15 Yet, assaultive crimes, crimes involving the use or possession of a dangerous weapon, and crimes punishable by 10 or more years imprisonment cannot be considered under the “one bad night” rule.16 It is beneficial to submit proofs to all parties and the court that the convictions satisfy the “one bad night” rule before the hearing is held.
Also for the first time, a person can have a first-offense operating while intoxicated conviction expunged.17 In addition to the typical conduct of the petitioner-versus-public welfare balancing test that exists in every expungement application, for this type of 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.18 Further, select marijuana offenses have their own expungement procedure.19
AUTOMATIC EXPUNGEMENTS
Effective April 2023, automatic expungements for certain offenses rolled out across the state.20 It was reported that on the rollout date alone, nearly 850,000 Michiganders saw at least one conviction automatically set aside under the program, with more than 252,000 individuals ending the day conviction-free.21 What follows are descriptions of the specific requirements and prohibiting factors.
A misdemeanor of 93 days or more is automatically set aside if seven years have passed from the imposition of the sentence.22 Misdemeanors of 92 days or less also fall under the seven-year wait period.23 A felony eligible for expungement under the traditional method will be set aside automatically if 10 years have passed from whichever of the following events occurred last: imposition of the sentence for the conviction or completion of any term of imprisonment for the conviction.24 The individual cannot have another conviction during the applicable time period.25
No more than a total of two felony convictions and four 93-day misdemeanor convictions can automatically be set aside.26 This limit does not apply to 92-day or less misdemeanors.27 Just like traditional expungements, an individual whose conviction is set aside under the automatic expungement program impliedly consents to the creation of a nonpublic record.28 If a person has more than one conviction for an assaultive crime or an attempt to commit an assaultive crime, that person is not eligible for automatic expungements of their felony convictions or misdemeanor convictions for which the maximum punishment is imprisonment for 93 days or more.29
Convictions ineligible for automatic expungements involve the commission of or attempted commission of an assaultive crime; a serious misdemeanor; a crime of dishonesty; any other offense punishable by 10 or more years’ imprisonment; a violation of the laws of this state listed under chapter XVII of the code of criminal procedure, 1927 PA 175, MCL 777.1 to 777.69, the elements of which involve a minor, vulnerable adult, injury or serious impairment, or death; or any violation related to human trafficking.30 The following traffic offenses are also not eligible for automatic expungements: a conviction for operating while intoxicated, any traffic offense committed by an individual with an indorsement on his or her operator’s or chauffeur’s license to operate a commercial motor vehicle that was committed while the individual was operating the commercial vehicle or was in another manner a commercial motor vehicle violation, or any traffic offense that causes injury or death.31 The listed convictions may be eligible through the traditional application process.
Despite some offenses qualifying for automatic expungements, individuals wanting convictions set aside earlier may still apply to have their convictions set aside through the court given that they satisfy all requirements under MCL 780.621.
CASES CLARIFYING THE EXPUNGEMENT STATUTE
In recent years, cases have been argued on appeal in hopes of clarifying the requirements of obtaining an expungement. The Michigan Court of Appeals, in an unpublished opinion, held that the plain language of the statute does not require a hearing and a reviewing court may grant or deny an expungement absent oral argument.32
In another unpublished opinion, the Court of Appeals considered the meaning of the phrase “public welfare.” While not defined by the statute, the court relied on Black’s Law Dictionary to define it as “‘[a] society’s well-being in matters of health, safety, order, morality, economics, and politics,’” thereby holding that the public welfare includes every member of the public without exclusion.33 This case is currently pending in the Michigan Supreme Court with the Court to determine, in part, if the Court of Appeals correctly defined “public welfare” under the former expungement statute.34 The higher courts are expected to issue more decisions as the new expungement statute continues to pick up steam.
JUVENILE EXPUNGEMENTS
While the process for setting aside juvenile adjudications is largely the same as setting aside adult convictions, there are three key differences that are important to note. One is the number of adjudications that can be set aside. A person applying for a juvenile expungement cannot have more than one adjudication that would be a felony if committed by an adult and not more than three juvenile offenses total on their record.35 If there is one adjudication that would be a felony if committed by an adult, only two misdemeanor adjudications can be expunged.36 If there are no felonies, the person cannot have more than three adjudications for misdemeanor offenses set aside.37
Another difference is that the petitioner only has to wait one year after the termination of court jurisdiction to file the application.38 Additionally, courts can set aside adjudications prohibited from being set aside as an adult conviction. For example, a person is eligible to have an adjudication for criminal sexual conduct in the third degree set aside despite an adult conviction for the same offense not being eligible for expungement.39
BENEFITS OF SETTING ASIDE CONVICTIONS
The effects of successful expungements can range from intangibles such as the internal satisfaction of no longer being stigmatized by having a criminal conviction to tangibles such as better employment, education, and housing opportunities. In our practice, we have seen clients receive new job offers, find better housing, and apply for and receive certain licenses through the state. With the whole courtroom clapping in excitement after an emotional and highly anticipated expungement, we have seen a father who is now able to attend his children’s field trips. These are very real examples of how the Clean Slate Act and expungements better our communities and foster the notion of rehabilitation.
Specifically, a study out of Michigan examined Unemployment Insurance Agency wage data for individuals who received expungements between January 1998 and May 2011.40 The results showed large gains in both employment rates and wages following an individual’s receipt of an expungement.41 Within one year, on average, wages increased by more than 22% as the unemployed found jobs and the minimally employed found steadier or higher-paying jobs.42 This benefit is in addition to a reduction in recidivism as those who have received an expungement have extremely low subsequent crime rates.43
CONCLUSION
While the process to set aside convictions may seem confusing, the hope is this article will help practitioners gain a clear understanding of the steps and requirements contained in the new statutes. Now is the time for attorneys to help clients take advantage of this underutilized tool.44
With passage of the Clean Slate Act and the introduction of expungement fairs across the state, applications to set aside convictions are on the rise. Learning more about the ins and outs of this important change in our laws can help your clients move forward with their lives.