One of the most progressive changes to the current Michigan expungement statute is the addition of automatic expungement for both felonies and misdemeanors. However, there are also many conditions, exceptions and exclusions to this provision. To give the state time to figure out a system to implement this, automatic expungements will not begin until at least April 2023.
A felony or misdemeanor conviction shall be set aside without the filing of an application if both of the following apply:
- For a felony, ten (10) years have passed
- For a misdemeanor, seven (7) years have passed, from whichever of the following events occur last:
- The date the sentence for the conviction was imposed.
- The date any term of imprisonment for the conviction was completed.
Conditions to the Automatic Expungement Process
First, no more than two (2) felonies or four misdemeanors total can be automatically expunged during an individual’s lifetime. Secondly, a conviction for a felony or misdemeanor could not be automatically set aside unless all of the following apply:
- The required, applicable time period has elapsed.
- There are no criminal charges pending against the applicant.
- The applicant has not been convicted of a crime during the required, applicable time period.
Exclusions to Automatic Expungement
Eligibility for automatic expungement does not apply to an individual who has more than one conviction for an assaultive crime. In addition, automatic expungement for a felony or misdemeanor would not apply to the following convictions:
- an assaultive crime,
- a serious misdemeanor,
- a crime of dishonesty,
- any other offense punishable by 10 or more years’ imprisonment, or a
- felony violation the elements of which involve a minor, vulnerable adult, injury or serious impairment, death, or any violation related to human trafficking.
Expungement of Marijuana Convictions: Finally Something, But Not Enough
For the first time since the legalization of recreational marijuana on Dec. 6th, 2018, there is now an opportunity to expunge misdemeanor marijuana offenses. Effective immediately, a person convicted of one or more marijuana offense can file an application to have them set aside. When filed, the reasonable presumption that the offense would have been lawful after Dec. 6th, 2018 arises.
The prosecuting agency who prosecuted the case has 60 days to object. In this case, they would hold a hearing to prove that the conduct which caused the conviction is still a criminal violation. Remember: being in possession of or cultivating up to two times the amount permissible is a civil infraction, not a criminal conviction.
Therfore, if someone was previously charged with the felony of growing 24 plants or less and the offense was plead as a misdemeanor, it is eligible for expungement. Therefore, the prosecution cannot rebut the presumption. Growing up to 24 plants, while is two times more than what is permissible, is only a civil infraction under the Michigan Regulation and Taxation of Marijuana Act (MRTMA).
Unfortunately, this provision does not apply to felony marijuana convictions.
Excluded Offenses: Offenses That Are Ineligible For Expungement
The following offenses may not expunged, whether by application or the automatic process:
- A felony, or an attempt to commit a felony, which carries the maximum punishment of life imprisonment.
- A violation or attempted violation of the criminal sexual conduct (CSC) statutes (with the exception of CSC in the fourth degree as discussed under HB 4984); for:
- offenses involving second-degree child abuse or child sexually abusive materials;
- offenses involving the use of a computer to commit numerous crimes, including soliciting sex with a minor, stalking, causing death by explosives, or swatting;
- a felony conviction for domestic violence if the person has a previous misdemeanor conviction for domestic violence; or a violation of Chapter LXVIIA (Human Trafficking) or Chapter LXXXIII-A (Michigan Anti-Terrorism Act) of the Michigan Penal Code.
Reinstatement of Automatically Expunged Offenses
A automatically expunged charge may be reinstated if, during a motion of a person owned restitution or the court’s own motion, the individual has not made a good faith effort to pay court ordered restitution.
Under the automatic expungement provision, the obligation to pay restitution is not relieved when it is owed to the victim of a crime, nor would it affect the jurisdiction of the convicting court with regard to enforcing restitution.
Further, a conviction set aside under the application process, a marijuana misdemeanor offense, or a conviction set aside automatically could be considered a prior conviction by a court, law enforcement agency, prosecuting attorney, or the attorney general (as applicable), for purposes of charging a crime as a second or subsequent offense, or for sentencing under habitual offender statutes.
Additionally, a conviction, including any records relating to the conviction and any records concerning a collateral action that has been set aside under the act, cannot be used as evidence in an action for negligent hiring, admission, or licensure against any person.
The Takeaway in Michigan Expungement
Of course, the new law makes it clear that it does not create a right to expungement; it remains a privilege. This new law is effective now, with the automatic expungement statute not becoming effective until at least April 2023. That said, this is a major step in criminal justice reform in Michigan and it should be applauded.
Much of the information from this article is attributed to the Michigan Legislature House Fiscal Agency’s Legislative Analysis.