On Oct. 12th, 2020, Gov. Gretchen Whitmer signed seven bills into law known as the “Clean Slate” Initiative, which set out new rules for Michigan marijuana expungement. This new law will benefit thousands of Michiganders when it goes into effect on Apr. 11th, 2021, which will make even more marijuana convictions eligible to be set aside (“expunged”). While necessary, these changes made a complex law even more complex for the everyday reader. Therefore, you need representation to navigate the new rules.
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.
Below, we have outlined the highlights of the new law:
1. Misdemeanor Marijuana Offenses Are No Longer Discretionary
Before the new law, expungements 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 Dec. 6th, 2018; the day of adult-use cannabis legalization in Michigan. Such offenses include possession and growing charges.
If the state does not 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 Dec. 12th, 2018.
3. Faster Expungement Process
Application for expungement 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 are 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 will not begin to take effect until Apr. 11th, 2023.
7. Resentencing
Another important provision to the new law is the possibility for resentencing. If your application to expunge your marijuana offenses is granted, you may be re-sentenced in other cases where the marijuana conviction was used in scoring your sentencing guidelines.
The provision applies even if it doesn’t change the sentencing guidelines. Therefore, if you were sentenced on a non-marijuana related crime and misdemeanor marijuana convictions were used in your pre-sentence report, you may qualify for new sentencing after the marijuana convictions are expunged.
How can that be helpful? Well, if you are currently on probation because the judge threw the book at you based on three (3) prior marijuana arrests, you may be able to reduce or end the probation term. However, the law specifically states any fines or fees associated with the convictions set aside shall not be returned.
Limits to Expungement
The new rules allow for more offenses to be set aside, but there are still limits. Under the previous law, you could expunge 1 felony or 2 misdemeanors. Under the Clean Slate Law, no more than two (2) felonies and four (4) misdemeanors may be set aside during your lifetime. The 4-misdemeanor limit does not apply to marijuana cases with a maximum punishment less than 92 days in jail.
Even if your application to set your conviction is granted the State police maintains a non-public record of the convictions. The non-public record can be used by courts, agencies of the judicial branch of state government, law enforcement agencies, prosecuting attorneys, the attorney general, or governor for the following purposes:
- Obtaining state licensing
- Sentencing for felonies
- Request for a pardon
- Background for employment in law enforcement
- Sex offender registry
Benefits of Marijuana Offense Expungement
The benefits of removing marijuana convictions are vast, and include (but are not limited to) the following:
- Housing: Many apartment complexes and property management companies do not rent to people convicted of a drug crime. By expunging your marijuana convictions, you can finally say you have not been convicted of a drug crime on any housing applications.
- Career Advancement: Many employers do not 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.
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 are 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.
We begin our process by obtaining your criminal record and reviewing it for expungement eligible offenses. Next, we help you prepare and file the petition to expunge eligible convictions, and obtain hearing dates. Then, we will ensure you are as prepared as possible for the hearing.
If you would like to learn more about Michigan’s new expungement process and be notified when you can file for expungement, sign up for our email list in the lefthand corner of this webpage!
Michael Norman is a trial attorney practicing both civil and criminal litigation. Over the last 16 years, he has handled hundreds of cases; collecting millions of dollars for civil plaintiffs and multiple not-guilty verdicts for criminal defendants. He received his BA from Clark Atlanta University in 1998 in Sociology and Criminal Justice. He earned his JD from Georgia State University in 2004, where he served as president of the Black Law Student Association 2003. Michael is admitted to practice law in Michigan, the state of Georgia, federal courts and the Supreme Court of Georgia.
Michael was born and raised in the City of Detroit. He served in the Marine Corps after high school until he was discharged in Georgia, where he settled and attended both undergraduate and law school. After interning with the Department of Justice, he has continuously represented criminal defendants and civil plaintiffs in Michigan and Georgia courts. Michael was recognized by the State Bar of Georgia Committee on Professionalism in 2007. He returned permanently to Michigan in 2013 and continues to represent clients in both criminal and civil cases.