Which Marijuana Offenses Qualify Under Michigan’s New Expungement Law?

On October 12, 2020, Governor Gretchen Whitmer signed seven bills into law known as the “Clean Slate” initiative, which set out new rules for Michigan marijuana expungement. Now in effect, this new law can benefit thousands of Michiganders, making even more marijuana convictions eligible to be set aside (“expunged”).

While necessary, these changes made a complex law even more complex for non-lawyers. Therefore, you need representation to navigate the new rules.

Is marijuana eligible for expungement in Michigan? The answer is yes. Thanks to a new set of expungement laws that took effect in April 2021, called “Clean Slate,” some marijuana offenses are now eligible for expungement.

While many misdemeanor and felony marijuana offenses now qualify for expungement, there are exceptions to what marijuana convictions can be set aside. The law exclude felonies that have a maximum punishment of life in prison, such as certain Drug Trafficking convictions.

BREAKING NEWS

On August 23, 2021, Governor Gretchen Whitmer signed House Bills 4219 and 4220, which will allow anyone with only one (1) drunk driving conviction to seek to eliminate it from their criminal record. After going into effect on February 23, 2021, DUI expungement will benefit more than 200,000 people in the state who are carrying a criminal record that is impacting their lives in a number of ways.

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Interested in discussing how this law applies to you? Would you like to start working with our attorneys on your expungement case so you’re ready when the law is in full effect? Contact us immediately.

Marijuana Background

In 1972 , Congress passed the Controlled Substance Act (CSA), which made marijuana a Schedule I controlled substance.

This was despite the fact that The Report of the National Commission on Marijuana and Drug Abuse had concluded that there was “little proven danger or physical or psychological harm from the use of cannabis.”

Instead of heeding this advice, Congress made marijuana federally illegal on the same level as cocaine, heroin and crack.

Below, we have outlined the highlights of the new law:

1. Misdemeanor Marijuana Offenses Are No Longer Discretionary

Before the new law, marijuana expungements in Michigan were discretionary. This means that a judge determined if you met the criteria for expungement.

Under the new law, certain misdemeanor marijuana offenses must be expunged if the application is filed. This is a huge step for people trying to clean up their record and move forward in life.

2. Multiple Misdemeanors Eligible

In the past, those seeking expungement were limited to removing one (1) felony or two (2) misdemeanors. Now, the new law effectively removes the cap on the number of marijuana related misdemeanors you can expunge.

Additionally, more felony marijuana convictions are eligible for removal.

Multiple misdemeanor marijuana offenses may also be set aside if they would not have been a criminal offense after December 6, 2018; the day of adult-use cannabis legalization in Michigan. Such offenses include possession and growing charges.

If the state doesn’t file an answer rebutting the presumption within 60 days after you file an application for expungement, the court must set the conviction aside within 21 days.

If an answer is filed, a hearing must be set within 30 days and the prosecutor must demonstrate by preponderance of the evidence that the misdemeanor would still have been criminal after December 12, 2018.

3. Faster Expungement Process

Application for marijuana expungement in Michigan can be filed within three (3) years of the completion of a misdemeanor marijuana sentence.

The new law decreases the time frame for expungement of marijuana misdemeanors by two (2) years.

4. Expunging Felony Marijuana Offenses

Under the new expungement law, up to two (2) felony offenses involving marijuana may be set aside by application after seven (7) years from the completion of the sentence.

Additionally, one (1) felony may be set aside by application after 5 years from the completion of the sentence.

Some of the offenses that cannot be set aside include:

• Marijuana convictions where the maximum penalty is life in prison.
• Marijuana convictions involving minors.

5. “One Bad Night” Clause

Under the new law, multiple convictions are counted as one offense for purposes of expungement. This is referred to as the “One Bad Night” rule.

This means that if multiple crimes occurred within 24 hours and arose from the same transaction, they are counted as one offense.

This provision will make expungement available to many people who did not qualify for expungement under the previous law. However, this provision does not apply to:

• People with pending charges
• Assaultive crimes
• Crimes where minors were involved
• Crimes resulting in serious injury
• Crimes punishable by 10 years or more.

6. Automatic Marijuana Expungements

Some marijuana offenses will automatically be expunged after seven (7) to 10 years. However, not all offenses qualify for automatic expungement.

The automatic expungement time frame is longer than the time frame in which you’re allowed to file an application for expungement.

Also, knowing if your offense qualifies for automatic expungement requires review of the nature of the offense, as there are limitations to what crimes automatically are set aside. Automatic expungements won’t begin to take effect until at least April 11, 2023.

Benefits of Marijuana Offense Expungement

The benefits of marijuana expungement in Michigan are vast, and include (but are not limited to) the following:

• Housing: Many apartment complexes and property management companies don’t rent to people convicted of a drug crime. By expunging your marijuana convictions, you can finally say you haven’t been convicted of a drug crime on any housing applications.
• Career Advancement: Many employers don’t hire people with drug convictions. Due to expungement, your past convictions will not show up on a background check.
• Financial Aid: Some drug convictions make you ineligible to receive federal financial aid to go to college. By being able to finally receive college financial aid, this can jumpstart your career and options in adequate housing.

Famous Examples of Non-violent Marijuana Arrests

John Sinclair was originally from Flint, but soon after made Ann Arbor his home. He was a poet, musician, writer and marijuana user. Like some marijuana users, he sold small amounts to his friends to make his habit more affordable.

Possibly for political reasons (he was a founder of the White Panthers), law enforcement repeatedly investigated him using undercover (UC) officers purchasing very small amounts of marijuana.

In 1969, for the act of selling two joints to an UC, he was sentenced to prison for 10 years in Michigan. He served over two years before his sentenced was overturned for cruel and unusual punishment.

While this case may have been an extreme, every conviction and sentence to probation, jail or prison for marijuana is constitutionally cruel and unusual punishment.

In 2018, Michigan became the 10th state in this country to legalize the adult use and possession of marijuana with the Michigan Regulation and Taxation of Marijuana Act (MRTMA).

Thankfully, the Act decriminalized most offenses involving marijuana. What it did not do was expunge prior criminal convictions nor commute the sentences for those convicted of marijuana related offenses.

How Can A Marijuana Expungement Lawyer Help?

No matter what, you need a lawyer to help you examine all the complexities of the new law and make sure you’re getting the cleanest record possible. You don’t want to hire just any lawyer for this; you need one who is experienced in filing expungements and who is reputable in the court room.