Who is Eligible for an Expungement?


One of the questions I am often asked is, “How do I get this conviction taken off of my record?” The process is lengthy and there is no guarantee that the court will actually grant a person’s petition for expungement. Before one can even apply to have his or her record set aside, he or she must determine whether he or she falls within a very specific set of circumstances. However, the expungement statute in Michigan is ever-changing and, in recent years, has made it possible for a greater number of people to actually fall within the eligibility requirements. A word of advice that I try to give is that if you aren’t eligible for an expungement now, you should revisit the matter in 5 years to see if the statute has changed in your favor.
MCL 780.621 provides that a person who is convicted of one felony offense and no more than two misdemeanor offenses can petition to have the felony conviction set aside. The statute also allows for a person with two misdemeanor convictions to petition to have one or both of the misdemeanor convictions set aside. The only circumstance under which one may have more than one conviction set aside is if the person is seeking to have convictions set aside that were a direct result of his or her being a victim of a human trafficking violation.
The person must petition the court in which they were originally convicted. There are several convictions that are not eligible for expungement. They are as follows: child abuse 2nd degree; commission of child abuse in the presence of another child; possession of child sexually abusive material; use of a computer to possess, distribute, or receive child sexually abusive material; criminal sexual conduct 2nd degree; criminal sexual conduct 3rd degree; assault with intent to commit criminal sexual conduct; criminal sexual conduct 4th degree and attempted criminal sexual conduct 4th degree (if the CSC 4th or attempted CSC 4th convictions occurred after 1/12/2015); any traffic offense; a felony conviction for domestic violence if the person has a previous misdemeanor conviction for domestic violence; female less than 16-years-old in a house of prostitution.
The statute takes into account whether someone has previously avoided a conviction under a deferral program. If a person has avoided a conviction under the Minor in Possession of Alcohol deferral program, that MIP is still considered a misdemeanor conviction for purposes of this statute. Additionally, a misdemeanor or felony offense that was dismissed pursuant to completion of Holmes Youthful Trainee Act, drug or alcohol treatment court, MCL 769.4a or MCL 333.7411 will still be counted as a misdemeanor conviction for purposes of the expungement statute.
Before a person is even eligible to ask the court to set aside a conviction, he or she must wait five years from the date that they are released from any further court obligations that were imposed as a term of their sentence. For example, if a person is sentenced to probation for six months, he would have to wait for five years from the date of discharge from probation before he would even be eligible to petition the court for an expungement.
If a person petitions the court to set aside a conviction under this statute and the court denies that person’s request, he or she must wait another three years before he or she can petition the court again to have the conviction set aside, unless the court specifies an earlier date for filing another petition in its order denying the original petition.
There is a very specific process for how the petition to set aside a conviction is filed and what information must be included along with the petition. The statute indicates very clearly that “The setting aside of a conviction or convictions under this act is a privilege and conditional and is not a right.” MCL 780.621(15). The court must determine that the circumstances and behavior of the applicant warrant setting aside the conviction or convictions, and that setting aside the conviction or convictions is consistent with the public welfare. MCL 780.621 (14).
If you or someone you know is interested in having a criminal conviction set aside, it is always best to consult with an attorney to establish whether or not all of the requirements have been met and whether or not you are a good candidate to have your conviction set aside. Samuels Law Office handles many expungement cases and will happily consult with you to determine your eligibility and discuss the likely results.