If you have a criminal record, you know the affect and impact it can have on your life. Having a felony or even a misdemeanor on your record can affect your employment, housing, education, and eligibility for a loan. It would be nice to be able to check the No box on rent and job applications when asked if you have ever been convicted of a crime. The good news is that there is a way for you to wipe your slate clean.
The first thing when someone comes into my office for a consultation on getting a criminal record expunged or set aside, is to determine if they are eligible. Anybody’s criminal record can be obtained from the Michigan State Police IChat for a nominal price. There are three ways to be eligible for an expungement: 1) if you have no more than one conviction (felony or misdemeanor) you may get that conviction expunged 2) if you have a felony and no more than two misdemeanors on your record you can get the felony expunged, or 3) if you have two misdemeanors on your record you may get both misdemeanors expunged.
Not Every Conviction Can be Expunged
Not every type of conviction can be expunged. If you were convicted of a crime that had a maximum sentence of life imprisonment (such as murder, armed robbery) you are not eligible. Also, if you were convicted of Criminal Sexual Conduct (CSC) in the first, second, or third degree, you are not eligible. A conviction of CSC in the fourth degree is eligible to be set aside in some cases. If you were convicted of CSC 4th before January 12, 2015 you can only have it expunged if you have no more than two minor misdemeanor convictions (punishable by 90 days in jail or less) that occurred before your 21st birthday . Traffic offenses are not eligible either. This not only includes obvious ones such as OWI, Impaired Driving, Reckless Driving, Drag Racing, but any offense that is reported to the Secretary of State such as Fleeing and Eluding. A felony conviction for domestic violence cannot be expunged if the person has a prior misdemeanor domestic violence conviction. Also, convictions for terrorism, child abuse, or child pornography cannot be expunged.
Do Diversions Count as Convictions?
There are a few instances in the law where the legislature gives a second chance. If you have been sentenced under the Holmes Youthful Trainee Act (HYTA), received 7411 for drug use or drug possession, or received diversion for a first offense domestic violence, the “conviction” is hidden from your public record. You can honestly tell employees, housing managers, etc. that you don’t have a conviction for those offenses because it is not considered a conviction under the law. However, the “conviction” is only hidden from the public; the courts and law enforcement will always have access to it. For purposes of an expungement, diversion sentencings such as HYTA and 7411 count as a misdemeanor conviction, regardless of whether it was a felony or misdemeanor that you received diversion for. For example. if you were convicted of larceny from a building (a felony) and you were sentenced under HYTA, it would count as a misdemeanor for purposes of expungement eligibility if you were attempting to get another conviction expunged down the road.
Time and Wait Period
Once eligibility for the offense is determined, the next step is to determine if the requisite time requirements have been met. You must wait at least five years from the date of conviction, five years from the day you were released from incarceration, or five years since being discharged from probation or parole, whichever occurred last. If you are trying to set aside a juvenile adjudication, you must be at least 18 years old.
If My Petition is Denied by the Judge Can I Try Again?
Yes, if the judge denies your petition for setting a conviction aside you may petition again. However, you must wait at least three years before applying again.
Once eligibility has been determined and the timing is appropriate, next comes the most complex portion of the process: the application. It’s not just as simple as filling out a couple sheets of paper. If it were only that easy. First, you must obtain two sets of fingerprints on an RI-8 card at your local police station. If you are expunging a juvenile adjudication, you only need one set. Then, we must get a certified copy of your judgment of sentence or order of disposition. You must also pay a fee to the Michigan State Police for a criminal record check. Next, you must fill out the application to set aside the conviction completely and have it notarized.
Five copies of the application and four copies of the judgment of sentence are needed for filing with the trial court clerk. Then, copies of the application along with the Notice of Hearing must be served upon the Michigan State Police, County Prosecutor’s Office, and Office of the Attorney General. One copy stays with the court and the last one is yours. A proof of service must be filed with the court declaring that the appropriate copies along with the Notice of Hearing have been served. Lastly, comes the hearing date itself.
While proof of rehabilitation isn’t really a pre-requisite for an expungement, it is always a good idea to present the judge with a list of accomplishments or good things you have done since your conviction such as graduating from college or trade school, employment awards or advancements, civic involvement, raising a family, etc. It is also a good idea to tell the judge why you need your record cleared or how it is holding you back in some way. The prosecutor or the Attorney General can object to an expungement and they often do. That is why it is always a good idea to be represented by an expungement attorney. An experienced expungement lawyer not only helps you navigate through the seemingly endless array of red tape, but you can feel confident that a skilled litigator is fighting for you and making your case at the very important hearing, especially if the expungement is being objected to. We help you every step of the way.
As you can see, the process is very complicated and quite overwhelming to tackle alone. Contact Austin Legal Services, PLC today to speak with our Michigan Expungement Attorney at (517) 614-1983 to help you erase your past.
Expunging criminal records statewide throughout Michigan in the counties of: Ingham, Eaton, Clinton, Barry, Kent, Shiawassee, Jackson, Kalamazoo, Calhoun, Hillsdale, Branch, Gratiot, Washtenaw in the cites of: Lansing, Charlotte, Ann Arbor, St. Johns, Grand Rapids, Corunna, Jackson, and Grand Rapids, Hastings, Battle Creek, Kalamazoo, Hillsdale, Coldwater, Ithaca.