Law Update

New Michigan Expungement law

HB 4186 has been passed the house with 0 dissenting votes and it appears to have senate as well.  The bill in its future form is far more complex.  However, it will allow more people to set aside their convictions.

To set a conviction aside an individual will have to analyze the law if signed by the governor.  Depending on the circumstances, it now appears that an individual will be able to set aside a conviction with misdemeanors that are not “minor offenses.”  “Minor Offenses” were a big obstacle for many individuals because they were offenses that had maximum jail of 90 days or less.  That may sound like a lot but simple assault and battery is a 93 day misdemeanor.  As is a DUI.  That means for individuals that had an assault and battery and any other offense with more than a 93 day maximum jail sentence could not expunge a conviction.  This prior incarnation of the law limited expungement to primarily those that were only ever convicted of one offense.

An additional provision of the new bill will allow an individual to expunge more than one conviction at a time as long as they are both misdemeanors.

Assuming the governor signs the bill, many people that were unable to expunge a conviction under the former law will be able to.  Stay tuned for more information.

Cleaning out your criminal closet

Now juveniles can have up to three adjudications expunged.  One of those offenses can be a felony.  Additionally, “multiple adjudications arising out of a series of acts that were in a continuous time sequence of 12 hours or less and that displayed a single intent and goal” may constitute one offense depending on what the charges were.  MCL 712A.18e.

Under MCL 712A.18e(2)(c), a juvenile cannot have set aside a conviction in a designated case (meaning they were tried or sentenced as an adult).  However, that individual may be able to get there conviction set aside under the adult expungement law.

In Michigan, Expungement of an adjudication for MCL 750.413, Motor vehicle, taking possession and driving away, is mandatory upon request.

MCL 750.413.  Taking possession of and driving away a motor vehicle—Any person who shall, wilfully and without authority, take possession of and drive or take away, and any person who shall assist in or be a party to such taking possession, driving or taking away of any motor vehicle, belonging to another, shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years.

There is a list of crimes that cannot be set aside for juveniles and a different list for adults.  One should talk to an attorney to determine whether or not the application is possible.  A full understanding of the statutes may not be possible for the layman or even the judge.  I have heard of a judge that believed that the statute allowing for adults to clean up their adult record required the individual to wait five years after the adult’s probation ended.  That is simply not the case.  It is important to have representation to deal with that and other issues that may arise.

The statutes governing the process and the requirements, MCL 780.621 and MCL 712A.18e, can be found http://www.legislature.mi.gov/.  This website references Michigan law only.

Notes on Expungement from an Attorney in Michigan

Expunging a conviction in Michigan is not a right.

Under MCL 780.621(9), ”if the court determines that the circumstances and behavior of the applicant from the date of the applicant’s conviction to the filing of the application warrant setting aside the conviction and that setting aside the conviction is consistent with the public welfare, the court may enter an order setting aside the conviction. The setting aside of a conviction under this act is a privilege and conditional and is not a right.”

In order to clean up a criminal record in Michigan, one has to be prepared to fight.

How does one prepare to fight? Prepare a folder containing letters from members of the community that have known you during at least the last couple of years, documentation of accomplishments or positive activities (a copy of a diploma, certificates, honors, pictures of you helping clean up after Katrina, etc.), and an essay from yourself about why the Court should grant your request. Try to get around 7-10 letters. Avoid using letters from family. Letters from individuals with more credibility in the eyes of the judge will be more helpful. Those individuals include but are not limited to police officers, other judges, a mayor or village president, a member of a charity you’ve worked for, your employer, etc. Use individuals that will spell check their letter.

In preparing your argument you should hire an attorney. A competent attorney will prepare you for the hearing and make sure that the application is filled out properly. They will likely highlight your remorse and the change that has occurred in your life.

Remember, the way you dress says a lot about who you are. It might seem unfair but it is a reality. If you show up to court in a suit and tie, as opposed to a Pantera t-shirt, you’re more likely to succeed.

As always, you should never handle a legal matter without the assistance of an attorney.