Michigan’s New Expungement Law: Who Now Qualifies for Expungement?
A little over a year after a new Michigan expungement law was first introduced, Governor Whitmer signed seven house bills into law that completely changed criminal conviction/Michigan expungement laws. It’s known asthe “Clean Slate” initiative.
This bipartisan legislation is a historic moment for Michigan, as it permits thousands of Michiganders the opportunity to remove felony and misdemeanor convictions from their records, including misdemeanor marijuana offenses.
What’s also exciting is the automatic expungements of some felonies and misdemeanors, which means that in many cases, an application for expungement doesn’t need to be filed.
However, automatic expungements won’t become a reality until no earlier than April 2023.
These new laws are definitely difficult to understand.
Below, you can find a comprehensive summary of the new laws, which is helpful to both expungement attorneys in Michigan and lay people.
Sealing a Criminal Record vs. Expungement: What’s the Difference?
You may have heard the phrase “sealing” a person’s criminal record.
While expungement clears a conviction off someone’s criminal record (as if it never happened), sealing a criminal record only gives the appearance that the conviction has been cleared.
For instance, if sealed, your criminal record still “exists” both legally and physically; it’s just not readily available to the public.
Therefore, even if your record is sealed, it can still be obtained through criminal background checks for employment, insurance, gun ownership, etc.
This is why expungement is by far the most necessary and preferred route.
Change in Current Michigan Expungement Law
The new Michigan expungement law maintains the typical process, where a person eligible to have an offense set aside must demonstrate to the court that issued the conviction that they deserve the expungement.
This is now done through an evaluation of their actions from the date of conviction until the date of the petition.
Many more people are now eligible due to the expanded number of permissible felony and misdemeanor offenses, as well as a reduction in the number of years passed to become eligible.
Previously, Michigan felony expungement law permitted a person with no more than one (1) felony and two (2) misdemeanors to set aside the felony.
Additionally, someone with no more than two (2) misdemeanors could expunge one or both of their charges.
Now, a person convicted of one or more criminal offenses, but not more than a total of three (3) felony offenses may apply to have any or all of those convictions set aside.
However, there are some exceptions, such as:
An applicant cannot have more than two (2) convictions for an assaultive crime (felony or misdemeanor), or any violent felony record expunged during their lifetime.
An applicant cannot have more than one (1) felony conviction for the same offense to be set aside if the offense is punishable by more than 10 years.
The applicable minimum time periods are as follows:
Seven (7) or more years before applying to set aside more than one felony conviction.
Five (5) or more years to set aside a single felony conviction or one or more serious misdemeanors.
Three (3) or more years to set aside a misdemeanor, other than an application to set aside a serious misdemeanor or any other misdemeanor conviction for an assaultive crime.
The applicable time period begins on the latest date of the following:
Placement of the sentence for the conviction that the applicant seeks to set aside.
Completion of probation or discharge from parole placed for the conviction that the applicant seeks to set aside.
Completion of any term of imprisonment placed for the conviction that the applicant seeks to set aside.
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 isn’t relieved when it’s owed to the victim of a crime, nor does 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 doesn’t 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.
Attorney Morris is trial lawyer who has been providing high-quality legal representation in the areas of state and federal criminal defense for more than 20 years. He’s known for his trial preparation by fellow attorneys, judges and clients alike. As a trial attorney, he’s dedicated to attaining justice in every case, and is always prepared to successfully take on complex legal issues. Barton and his law firm pride themselves on obtaining results for their clients that other attorneys cannot.
Not only does Barton Morris have extensive experience, he also engages in continuing legal education to provide the highest quality legal services. Barton has received specialized scientific training through the American Chemical Society, and is the only forensic lawyer-scientist in Michigan. He attended the prestigious Trial Lawyers College and serves on its Alumni Association Board of Directors. Barton Morris is also a board member of several distinguished legal associations including the Michigan Association of OWI Attorneys, and the DUI Defense Lawyer’s Association Justice Foundation. He’s also an active member of the National Association of Criminal Defense Attorneys and has graduated from their National Criminal Defense Trial College in Macon, Georgia.
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