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.

Expunging A Conviction May Be About To Get Easier

There is talk of a new bill that would allow adults to expunge or set aside a conviction easier.1 This follows a recent bill that was made into law last December making it easier for juveniles to clean up their records.

“House Bill 4186, introduced with bipartisan co-sponsors by state Rep. Stacy Erwin Oakes, D-Saginaw, would expand the opportunity for individuals to expunge a criminal conviction, making the record non-public but still available to judges and law enforcement authorities. She introduced similar legislation last session that stalled in the House.” 1

“Oakes’ bill would expand that opportunity to individuals convicted of a single felony and no more than two misdemeanor convictions while pushing back eligibility to five years after finishing probation or parole, if given.
The proposal would not allow individuals to [set aside] crimes punishable by life imprisonment, most sexual offenses, some instances of domestic violence, stalking, causing death by explosives, swatting or traffic offenses including, but not limited to, drunk driving.”1
Whether or not the bill passes is anyone’s guess. As it stands currently, law abiding model citizens are forever handicapped in their search for employment for actions they did in their early twenties. If one get’s a DUI and a felony. Those two charges will follow them around the rest of their life.

The Prosecuting Attorney Association of Michigan and the State Bar of Michigan both seemed to support the bill.1 While there may be some aspects of the bill that need to be addressed it appears that the general view is that something should be done to help these individuals whom have paid their debt to society.

The barrier to those that commit a second offense after their 21st birthday seems to ignore common sense. How many people did something stupid they could have gotten into trouble for well into their early twenties. Additionally, the requirement that the offense be one that is not punishable by more than 90 days in jail. This excludes people who have committed relatively minor offenses. This does not mean your offense will exclude you.

Nothing in this post should be construed as legal advice and one should contact an attorney prior to taking any action.

1 “The invisible sentence? Michigan bill would allow more convicts to expunge criminal records” by Jonathan Oosting,(href=”http://www.mlive.com/politics/index.ssf/2013/05/the_invisible_sentence_michiga.html).

Erase your record

Some things to avoid when seeking an expungement in Michigan

One should avoid getting angry with the judge if he or she does not grant the motion.  You may have to go back in front of that same judge when you try a second time.

Do not lie.  This should go without saying when one is in court but for some reason people lie in court. If the judge asks you a question tell the truth.  If she asks have you been seeking treatment for your drug abuse do not lie and say “yes” if the answer is “no.”

Courtroom etiquette when setting aside a conviction

When going to court for any matter, one wants to dress appropriately.  For men, where a suit and tie if possible.  Try to borrow one if you do not own one.  For women, wear something nice but be conservative.  Dressing appropriately is a sign of respect to the court.  Often attorneys will tell there clients to dress as though they are going to church.  However, if possible dress better.  The way you dress tells the judge something about you.  If you wear a wife beater, the judge will think your a wife beater. This applies to anyone with you.  It may become apparent that your relatives are with you at the hearing.  If your brother is wearing an ICP t-shirt with a gigantic middle finger on it, it may reflect on you.

Treat the court with respect when cleaning up your record

Be sure you’re showing the judge the respect he or she deserves when your in court.  Say “yes sir” or “yes ma’am” or “your honor.”  Do not interrupt or talk over the judge or any other party.  In certain cases, the victim may show up.  Understand that they may argue against the court setting aside your conviction or adjudication.  If they do, you should not be disrespectful.