A criminal conviction can hurt a person’s ability to obtain school loans, get accepted into some school programs, advance in a career, and obtain licensing for some employment areas. Many are embarrassed by a prior criminal conviction, and worry how it will effect their reputation, and if their past will affect their family.
While a case is still pending prior to the entry of a conviction, there are several provisions in the law that allow the conviction to become a nonpublic record such as:
1) Holmes Youthful Trainee Act – HYTA is for persons between the age of 17 and 20 years. There are some offenses in which HYTA is not allowed);
2) 7411 – for drug possession offenses. It does not apply for delivery, possession with the intent to deliver, alcohol cases, or cases involving larger quantities of drugs;
3) 769.4a – for domestic violence charges;
4) Minor in Possession charges (MIP) have a deferral program for first time offenders;
4) 771.1; Pleas under advisement;
5) Diversion or first offender programs that are offered in some counties or Courts
A conviction can sometimes be avoided while a charge or charges are still pending through the plea bargaining process. A skilled criminal lawyer
may also be able to help you avoid conviction through evidentiary issues and trial.
For offenses in which a conviction has already been entered, the options are expungement (if eligible), or a pardon (which is extremely rare).
The first question becomes whether or not the person is eligible for an expungement. In Michigan, there are several types of conviction offenses in which expungement is not an option, because the law does not allow for expungement:
A) Life Offenses – Felony offenses, or attempted felony offenses, that carry a maximum penalty of life in prison (examples include Murder, Armed Robbery, 1st Degree Criminal Sexual Conduct, Safebreaking);
B) Criminal Sexual Conduct, or attempted criminal sexual conduct, under MCL 750.520c (2nd Degree Criminal Sexual Conduct), MCL 750.520d (3rd Degree Criminal Sexual Conduct), or MCL 750.520g (Assault with Intent to Commit Criminal Sexual Conduct);
C) Many drug delivery cases;
D) Traffic offenses such as Operating Under the Influence of Liquor (OUIL), Operating Whle Impaired (OWI), and Fleeing and Eluding Police are not expungeable. There are some non traffic offenses that are also reported to the Michigan Secretary of State such as Minor in Possession of Alcohol. Although the offense can be expunged, any offense that becomes part of the Michigan Secretary of State records cannot be removed from those records.
A person with a Federal Conviction from a Federal Court cannot obtain an expungement. The only option is a pardon.
A person that has more than 1 adult conviction, excluding those for which the judgement of guilt was deferred is not eligible for an expungement, unless the offenses are minor offenses, according to MCL 780.621. A person who is otherwise eligible to file an application for expungement under MCL 780.621 is not rendered ineligible by virtue of being convicted of not more than 2 minor offenses in addition to the offense for which the person files an application. A minor offense means a misdemeanor or ordinance violation for which the maximum incarceration does not exceed 90 days, for which the maximum permissible fine does not exceed $1,000, and that is committed a person who is not more than 21 years of age. A person who has previously obtained an expungement is not eligible for a second expungement pursuant to MCL 780.624.
In order to apply for an expungement, the applicant must wait until 5 years have passed since the imposition of the sentence for the conviction the applicant is seeking to set aside, or 5 years after the completion of any term of imprisonment for that conviction, whichever occurs later.
The petition for expungement is filed in the Court in which the conviction originated. The case is assigned to the sentencing Judge, or a Judge that succeeded the sentencing Judge’s docket.
The petition for expungement must include the following:
1) full name and current address of the applicant;
2) a certified record of the conviction that is to be set aside;
3) a statement that the applicant has not been convicted of an offense other than the conviction sought to be set aside as a result of this application, and not more than 2 minor offenses, if applicable;
4) a statement as to whether the applicant has previously filed an application to set aside this or any other conviction and, if so, the disposition of the application;
5) a statement as to whether the applicant has any other criminal charge pending against him or her in any Court in the United States or in any other country;
6) A consent to the use of the nonpublic record created under section 3.
The filing and service of the petition must be in accordance with the Michigan Court Rules.
The applicant must also submit 2 complete sets of fingerprints to the Michigan State Police. The Michigan State Police is required to forward those fingerprints to the FBI for analysis as well. The Michigan State Police reports to the Court any pending charges against the applicant, a record of conviction, and the setting aside of any previous convictions that it learns of. The Court is not allowed to decide on the petition until it receives this information. It is not uncommon for this process to take several months.
The Prosecutor or Attorney General reviews the petition to determine if the applicant qualifies for an expungement, and to object to the application if he or she chooses to do so. The victim of the crime that lead to the conviction must be notified by the Prosecutor or the Attorney General if the offense is assaultive or deemed to be a serious misdemeanor or a higher charge. The victim is allowed to appear at the hearing on the petition for expungement and/or make an oral or written statement to the Court.
The setting aside of the conviction is deemed a privilege, and not a right. The Court has wide discretion if the applicant qualifies for the expungement, and considers whether the granting of the petition is consistent with the public welfare. If the petition is granted, the conviction becomes part of a non public record.
If you are seeking an expungement, it is advisiable that you consult with an experienced attorney for the following reasons:
1) to make sure that you qualify for the expungement;
2) to ensure that the petition is prepared and served in accordance with the Michigan Court Rules;
3) to help arrange for the taking and processing of fingerprints;
4) it is important to remember that there is an element of discretion involved with a petition for expungement. It is not automatic. The attorney can help prepare and argue the petition in a manner to increase the changes the Judge will grant his or her discretion to allow the expungement. It is important to get it right the first time because of the time and cost involved. Also, the Judge takes into consideration any denials of petitions for expungement if asked to reconsider the issue in the future which could be the basis for a later denial of the same issue;
5) persons that are not citizens may bring to the attention of the authorities issues which could have immigration consequences.
Daniel Hilf, Esq. of the law firm of Hilf & Hilf, PLC, is a lawyer who is driven by a commitment to his clients. His legal career is distinguished by an ability to think on his feet, to analyze issues in both conventional and unconventional ways, and to react effectively against the challenges presented by Prosecutors and Courts.