Expunging / Setting Aside criminal records in Michigan

December 29, 2020 - Categories: News

 

Michigan Criminal Expungement Law of 2021

The state follows Pennsylvania, Utah and California in adopting an automated system to wipe clean certain convictions from public records after a period of time. Michigan's law will apply retroactively and is the first to automatically clear prior low-level felonies.  

Key changes include:  

       1. Many misdemeanors and low-level felonies will be automatically expunged without application or hearing

       2. Misdemeanor marijuana convictions can be automatically expunged after an application, but without a hearing.

       3. Other misdemeanors and felonies that still require an application and a hearing are changed as follows:  

              a. Waiting period for misdemeanors reduced to 3 years (from 5). For felonies, it is increased to 7.  

              b. Up to three felony offenses and an unlimited number of misdemeanors can be expunged through the application process (up from 1 felony and 2 misdemeanors under prior law).  

              c. Multiple felonies or misdemeanors arising from the same 24-hour period will now be treated as one conviction for the purposes of expungement (except for those that are assaultive, involve the use or possession of a dangerous weapon, or carry a maximum penalty of 10 or more years in prison).

How Does This Legislation Affect You or Someone You Know?  

CONVICTIONS STILL REQUIRING AN APPLICATION, A HEARING, AND JUDGE'S APPROVAL  

There are many crimes which still require a formal application and a hearing by a judge, which are:   

  • Assaultive crimes (e.g. assault, homicide, manslaughter, assaults against pregnant woman, kidnapping, criminal sexual conduct, armed robbery, terrorism, and violations involving bombs and explosives).
  • Serious misdemeanors (e.g. Crimes of dishonesty (e.g. forgery and counterfeiting)
  • Offenses punishable by 10 or more years in prison
  • Crimes involving a vulnerable adult or minor
  • Crimes involving injury, serious impairment, or death Crimes involving human trafficking.  

Process:  

       1. Waiting Period:

  • MCL 780.621(d)
  • The waiting time for filing an application to expunge a felony conviction is at least 7 years from the latest of the following events: date of the sentencing, completion of a term of probation, discharge from parole, or completion of any term of imprisonment.

  • The waiting time for filing an application to expunge a misdemeanor conviction will be at least 3 years from the latest of the following events: date of the sentencing, completion of a term of probation, discharge from parole, or completion of any term of imprisonment. 

    However, if the conviction is for a serious misdemeanor or an assaultive crime, the waiting time for filing an application to expunge the misdemeanor conviction will be at least 5 years from the latest of the events noted above.

  • If you obtain another conviction during the waiting time under the new law, you will be disqualified from expunging the prior conviction. 

       2. Up to three felony offenses (instead of 1 under prior law) and an unlimited number of misdemeanors can be expunged through the application and hearing process, except: a) no more than two assaultive crimes can be expunged, and b) no more than one felony conviction for the same offense can be expunged if the offense is punishable for more than 10 years imprisonment. However, you must file in each court in which the convictions were obtained (you cannot file in one court for multiple felonies and misdemeanors that occurred in multiple courts).

       3. You must still, as the prior process required, file an application for expungement, get a court date, get finger prints, notify the Attorney General, Prosecutor, and State Police, address any objections by the prosecutor or State Police, prepare for and attend a hearing in front of a judge, and explain why you should be granted an expungement.  

An experienced expungement lawyer, like those at Access Legal Care, will continue to help Michiganders with this process, including performing all of the above steps, writing and filing a detailed brief in support of your case with the Judge and Prosecutor, and arguing your case before the Judge.   

CONVICTIONS REQUIRING AN APPLICATION, BUT NOT ALWAYS A HEARING

Misdemeanor Marijuana Offenses:  

Process:

There will be a streamlined process to set aside misdemeanor marijuana offenses that would not have been considered crimes after recreational marijuana was legalized in Michigan, as follows:  

  1. Submit an application at least 3 years after probation/incarceration ends.
  2. A judge must set aside the conviction automatically after 60 days of receiving an expungement application, unless the prosecutor contests it. 
  3. If the prosecutor contests it, there will be hearing.
  4. The evidentiary burden rests on the prosecutor. 
  5. People aggrieved by a court's ruling on an application for marijuana expungement can request a rehearing or file an appeal.  

An experienced expungement lawyer, like those at Access Legal Care, will continue to help Michiganders with this process, including performing all of the above steps to apply for expungement and then, if a Prosecutor objects, writing and filing a response to the objection and a detailed brief in support of your case with the Judge and Prosecutor, and arguing your case before the Judge.   

CONVICTIONS WHICH WILL BE AUTOMATICALLY EXPUNGED: NO APPLICATION AND NO HEARING  

  • All misdemeanor-types other than above are eligible

              - Up to 4 misdemeanors will be automatically expunged  

  • All felony-types other than the above are eligible 

              - Up to 2 felonies will be automatically expunged  

The great news about all of the other types of felonies and misdemeanors is that they will automatically be removed by Michigan. For existing crimes on your record, the legislation gives the state two years to implement the automatic expungement process. In the future, if/when someone gets these types of criminal convictions, they will not show up on the criminal record in the first place.  

WHEN DOES THIS LAW TAKE PLACE AND HOW CAN WE GET STARTED?  

The legislation will take effect officially in April 2021. As mentioned above, the states have two years to put in place automatic expungement systems. But there are steps you, or someone you know, can take in the mean-time:  

       1. Download a criminal iChat report ($10): Prior to the hearing, the potential client should go to the Michigan state criminal history website, at https://apps.michigan.gov/ , pay the $10.00 fee, and download the report in PDF.  

       2. Schedule a Free Legal Consultation to have an attorney review your criminal report and determine which convictions will automatically expire, which ones must be applied for, and which ones require a hearing, a brief in support, and other legal assistance, as well as costs and timing. Please upload/attach a copy of your iChat report to the meeting invite when you schedule. You can schedule a free phone consultation at: https://accesslegalcare.com   

OTHER SERVICES OFFERED IN YOUR STATE BY ACCESS LEGAL CARE  

In addition to our Abandoned Asset Investigation & Recovery Services, Access Legal Care offers a full range of services in many legal areas including family law, probate, estate documents, criminal expungements, driver’s license restoration, lawsuit filing and defense, property disputes and deeds, QDROs/EDROs, tax negotiation/settlement, trademark & copyright applications, and Bankruptcy Chapter 7 preparation.

Please see our website for more information and to schedule a free phone consultation at https://www.accesslegalcare.com/schedule-a-phone-appointment 

We look forward to helping thousands of Michigan residents to get their criminal records cleaned up and to get started on a better life!