NOTE: THIS BLOG WAS WRITTEN BEFORE THE NEW EXPUNGEMENT LAW WAS PASSED. AN EXPUNGEMENT IS NOW POSSIBLE EVEN WITH PRIOR CONVICTIONS! Link: Learn More
A new bill has been introduced that would amend Michigan’s expungment statute (also known as the Motion to Set Aside Conviction statute). This new bill, HB 4106, would make a very substantial change in Michigan law. Under the current statute, a person can only have a conviction set aside if they have only one conviction of any type (felony, misdemeanor, traffic misdemeanor or ordinance). For example, a person with a 20 year old felony cannot move to expunge the felony if he or she has a 15 year old misdemeanor conviction for driving while his or her license was suspended.
Under the new, proposed law, a person could petition to have a felony removed from their record if they have not more than two misdemeanor offenses. A person with two misdemeanors and no prior felony convictions, could move to expunge both misdemeanors. For purposes of eligibility only, a traffic misdemeanor (like DWLS or reckless driving), would not constitute a misdemeanor except OWI or OWVI (operating while intoxicated or impaired driving).
The criminal defense lawyers with LEWIS & DICKSTEIN, P.L.L.C. have handled well over 1,000 cases where we’ve requested that a conviction not be entered in a case or that a conviction be set aside or expunged. We have been able to develop a highly impressive and extremely persuasive method of making these requests before the various judges in Michigan and we would be happy to help anyone who would like to get a conviction off his or her record.
Michigan Compiled Law (hereinafter referred to as “MCL”) §780.621 provides that a person may apply to have a conviction set aside if certain conditions are satisfied and if said person has only one prior conviction. Specifically, section 9 indicates, “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 other words, a court may set aside a conviction if (1) the circumstances and behavior of the applicant since the date of the conviction warrant the requested relief and (2) the setting aside of the conviction is consistent with the public welfare.
The threshold requirement for taking advantage of the expungment act is that the applicant must have been convicted of not more than one offense. People v. McCullough, 221 Mich.App. 253, 256, 561 N.W.2d 114 (1997). The purpose of the act is “to expunge the entire criminal record of one-time offenders.” Thus under the current law, “only those persons whose criminal records are blemished by a single conviction for a single crime … committed on a single occasion meet the threshold requirement and are eligible for expungment.” Id. at 257, 561 N.W.2d 114
Loren Dickstien and Randy Lewis argue based upon Michigan law that the analysis and consideration of a motion for expungment should be based solely on the circumstances and behavior of the individual defendant and not solely upon other factors set forth in the statute. This argument is supported by People v. Rosen, 506 N.W.2d 609, 201 Mich.App. 621 (1993).
The Michigan Court of Appeals has interpreted the statute as establishing a balancing test between a defendant’s “circumstances and behavior” subsequent to the conviction and the “public welfare.” People v. Boulding, 160 Mich.App 156, 158; 407 NW2d 613 (1986).
If we are representing you, we will argue that the expungment statute should be liberally construed in favor of its remedial policy. This argument is supported by the case of People v. Van Heck, 252 Mich.App. 207, 651 N.W.2d 174 (2002) and People v. Miller, 78 Mich.App. 336, 343, 259 N.W.2d 877 (1977) (statutes that are remedial in nature should be “construe[d]…liberally for the advancement of the remedy”).