Expungement of Criminal Records – General – Michigan
1. What is an expungement?
The process of legally destroying, obliterating or striking out records or information in files, computers and other depositories relating to criminal charges. In Michigan, the statute which defines the process of setting aside a conviction is also referred to in case law as an expungement statute. See, People v. Van Heck, 252 Mich. App. 207 (2002).
2. Do the records just “disappear”?
No. The records cannot be accessed for general law enforcement or civil use. An set-aside record may be considered in employment applications for law enforcement positions and licensing. Expunged records of may still be used as a prior conviction when applicable in subsequent sentencing. M.C.L. § 780.623. Setting aside of an offense doesn’t relieve anyone of a duty to register as a sex offender. M.C.L. § 780.622. Juvenile records of diverted sentences are to be destroyed within 28 days after they turn 17. M.C.L. § 722.828.
4. What records may be set aside?
Eligible records of convictions of first offenses (see below). M.C.L. § 780.621.
5. Who is eligible for an order to set aside a criminal conviction?
A person who is found guilty, or guilty but mentally ill, by a judge or jury, or pleads no contest. The criminal offense must not be a sexual offense under M.C.L. 750.520c, 750.520d, or 750.520g, a felony or attempted felony punishable by a life imprisonment, or a traffic offense. The person must not have any other prior convictions or convictions that were set aside. M.C. L. § 780.621 et seq. Juvenile with records of diverted sentences who have reached the age of 17. M.C.L. § 22.828.
A person may apply to have a conviction set aside for any crime except: 1) a conviction of a felony or an attempted felony punishable by life imprisonment; 2) a violation or attempted violation of criminal sexual conduct under MCL 750.520c, MCL 750.520d, or MCL 750.520g; or 3) a traffic offense. A person who has had more than one conviction for any offense cannot apply. A person may have only one conviction set aside.
A person who has been convicted of a nontraffic offense that is reported to the Secretary of State may apply to have the conviction set aside, but if the application is granted, the court cannot order the removal of the offense from the Secretary of State’s records.
A person may apply to have a conviction set aside when five years have passed since the date he or she was sentenced for the conviction, as long as he or she was not imprisoned. If the person was imprisoned, he or she may apply to have the conviction set aside when five years have passed since being released from the term of imprisonment for that conviction.
6. How do I get records set aside?
An application must be filed at least 5 years following sentencing for the conviction that the applicant seeks to set aside or 5 years following completion of any term of imprisonment for that conviction, whichever occurs later. The application must contain:
(a) The full name and current address of the applicant.
(b) A certified record of the conviction that is to be set aside.
(c) A statement that the applicant has not been convicted of an offense other than the one sought to be set aside as a result of this application.
(d) 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.
(e) 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.
(f) A consent to the use of the nonpublic record created under section 3 to the extent authorized by section 3.
The applicant must submit a copy of the application, a processing fee, and 2 complete sets of fingerprints to the department of state police. The department of state police will compare those fingerprints with the records of the department, forward a complete set of fingerprints to the federal bureau of investigation for a comparison with the records available to that agency. The department of state police will report to the court in which the application is filed the information contained in the department’s records with respect to any pending charges against the applicant, any record of conviction of the applicant, and the setting aside of any conviction of the applicant and report to the court any similar information obtained from the federal bureau of investigation. The court will not act upon the application until the department of state police reports the information required by this subsection to the court.
A copy of the application must be served upon the attorney general and upon the office of the prosecuting attorney who prosecuted the crime, and an opportunity will be given to the attorney general and to the prosecuting attorney to contest the application. You must also send a fingerprint card and a processing fee with the copy served on the Michigan State Police. Be sure to ask the local law enforcement agency the amount of the application fee. If the conviction was for an assault crime or a serious misdemeanor, the prosecuting attorney shall notify the victim of the assault crime or serious misdemeanor of the application The victim has the right to appear at any proceeding related to setting aside the conviction and make a written or oral statement.
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 on order setting aside the conviction. M.C. L. § 780.621.