Is a criminal conviction on your record holding you back? Making it difficult to find work or obtain housing? You may be able to have your conviction set aside, or expunged, thus removing it from your public record and making it easier to move forward with your life. Even though the conviction is removed from your public record, the court system and law enforcement will always have access to that information and can only be used for limited purposes, such as sentence enhancing. First we will discuss who is eligible for an expungement and then how the process works.
Who is Eligible to Have a Conviction Set Aside?
Both felonies and misdemeanors can be expunged. Since felonies tend to do the most harm, most people applying to have convictions set aside are for felonies. However, you can apply to have one or even two misdemeanor convictions set aside provided you are not otherwise disqualified. A recent amendment allows an expungement for someone with more than one conviction. If you were convicted of no more than two misdemeanors and one felony, you can apply to have the felony set aside. If you have two misdemeanors on your record, you can apply to have both misdemeanors set aside provided the offenses are eligible. Keep in mind that deferred conviction under HYTA and 7411 for example count as convictions for purposes of an expungement. The caveat is not every conviction can be set aside.
What Convictions Cannot be Set Aside?
- Any crime or attempted crime that has a potential life sentence (ex. Murder, Armed Robbery)
- Criminal Sexual Conduct (CSC) in the first, second, or third degree (CSC in the fourth degree can be set aside in some instances)
- Assault with Intent to Commit CSC
- Traffic Offenses (DUI, OWI, Impaired Driving, Reckless Driving, Drag Racing, etc.)
- Child Abuse (most degrees of child abuse)
- Possession of Child Sexually Abusive Material (Child Pornography)
- Felony Domestic Violence (if previously convicted of domestic violence)
- Prostitution (unless committed as a result of human trafficking)
Do Convictions That Were Diverted Through HYTA or 7411 Count as Convictions?
Yes. If you had a conviction that was made non-public through the Holmes Youthful Trainee Act or 7411 for first offense drug use or drug possession charges count as misdemeanor convictions for purposes of expungement eligibility. Even if the crime you were given HYTA or 7411 for was a felony it still counts as a misdemeanor for expungement purposes even though the conviction is non-public because of the diversion sentencing.
Can Criminal Sexual Conduct in the Fourth Degree (CSC 4th) be Expunged?
It can, but only under limited circumstances. If the CSC 4th occurred before the effective date of the new amendment (January 12, 2015) it can only be expunged if the petitioner has no more than two minor misdemeanor convictions (punishable by 90 days in jail or less) that occurred before his or her 21st birthday.
When Can You Apply to Have a Conviction Set Aside?
The timetable for applying is five years from the date of the conviction, the date of completion of probation or parole, or the date of release from incarceration, whichever occurred last. If you are applying to set aside a juvenile adjudication, you have to wait until you are 18 years old.
What are the Procedures to Set Aside a Conviction?
This is the part where it can get a little burdensome as it requires a lot of paperwork. These are the things you will need to obtain to file with your application.
- One set of fingerprints on an RI-8 card. These can be taken at your local police station.
- A certified copy of your Judgment of Sentence (for adult convictions) or Order of Disposition (for juvenile adjudications). These can be obtained from the court of your conviction for a nominal fee.
- A certified check or money order payable to the order of the State of Michigan for the appropriate fee. Currently, the fee is $50 for adult convictions and $30 for juvenile adjudications but they are subject to chance.
The next step is to fill out the application completely and then sign and date it infront of a notary public. Most banks have notaries for no charge if you have an account there. Once that is done, make five copies of the signed application.
Deliver the original along with the five copies to the clerk of the court where you were convicted. Along with the application include the certified copy of either your Judgment of Sentence or Order of Disposition. The clerk will fill in the Notice of Hearing section on the application with a date and hand you back five copies.
Now it’s time to distribute those copies. Here’s how you do it:
- Michigan State Police—mail them a copy of the application, notice of hearing, copy of your judgment or adjudication, the application fee, and the fingerprint card.
- Michigan Attorney General—Mail them a copy of the application, notice of hearing, and a copy of your judgment or adjudication.
- County Prosecutor—Mail them a copy of your application, notice of hearing, and a copy of your judgment or adjudication.
You should now be down to two copies of your application Now you need to fill out the Proof of Service portion on the application and send a copy to the Court where you filed your application to tell the court that you have mailed the requisite copies to everyone you needed to. Keep of copy of the completed application and of your judgment or adjudication for your own records.
Before your Court date, fill out the Draft Order using the information from your judgment or adjudication and make some copies to bring with you to Court. When the judge grants your application, this Order is already prepared so all the judge has to do now is sign and date it. You need to make sure that the county prosecutor and the Attorney General receive copies of the signed order. The Court should see that the MSP Records Division gets a copy but it’s always good to check up a little while after the hearing just to make sure.
What Happens at the Hearing
Representatives of the Attorney General’s Office and the county prosecutor’s office may be there and if the conviction you are attempting to set aside was a violent or assaultive crime, the victim may be there and can be heard by the court. Either the Attorney General or county prosecutor can object to your application and they will tell the judge why. Although it’s not actually required, it’s a good idea to bring evidence of your educational achievements, vocational success, or substance abuse treatment, and community involvement. It is also good to bring professional and social letters of reference and good character to demonstrate rehabilitation to the judge. You can even bring some character witnesses with you although many judges don’t allow for such testimony.
Do I Need to Hire an Attorney?
While it is not required to have an attorney represent you, it is highly recommended. If you are unsure whether or not you qualify and if the prosecutor or AG gives indication that they object to your application, then you should definitely hire an attorney. Just because you are eligible doesn’t mean the judge will grant it. It is discretionary and not a right. Each judge is different in how they approach and handle motions to set aside a conviction. Also, the process is quite tedious and can become quite burdensome so many people find it best to hire an attorney because it eliminates a lot of the stress and eases their minds that’s it’s being done correctly.
If you would like to start the process on expunging your record or to see if you are eligible to have your conviction set aside, call Austin Legal Services today at (517) 614-1983 to speak to a Michigan Expungement Attorney. We can help you erase your past so you can move forward.
Helping clients expunge their criminal records throughout Michigan in the counties of: Ingham, Eaton, Jackson, Livingston, Shiawassee, Kent, Clinton, Barry, and Gratiot and in the cities of: Lansing, East Lansing, Mason, St. Johns, Ithaca, Charlotte, Jackson, Brighton, Howell, Corunna, Grand Rapids.