We receive many calls from prospective clients wanting to know if they can expunge a past criminal conviction. For many such callers, their prior conviction is the result of poor judgment exercised during youth, the consequences of which are continuing to haunt them. The most significant consequence being the inability to find or maintain gainful employment despite the passage of many years since the conviction. Fortunately, a properly obtained expungement can go a long way in helping a person who is trying to find employment and otherwise needs to gain the advantage of a fresh start in life. Unfortunately, the term "expungement" is often loosely thrown about and the concept or "effect" of an expungement is often very misunderstood.
Expungement of a criminal conviction has the effect of "setting the conviction aside" and allows the person whose conviction has been expunged to represent that he or she has not been convicted of a crime. Furthermore, once a conviction is set aside under the expungement statute, the person whose record has been expunged is legally considered not to have been convicted of a crime. This provides a great benefit to our clients by allowing them to honestly answer "no" if a potential employer asks "have you ever been convicted of a crime?" - especially since in Michigan, most employers may not legally ask about your criminal history that did not result in a conviction. http://legislature.mi.gov/doc.aspx?mcl-37-2205a
However, it is important to note that while expungement removes the public record of conviction, the expungement process does not erase the arrest or the court proceedings. A "private" record of the fact that the conviction has been set aside remains and is accessible to law enforcement and court personnel to guard against abuse of the expungement statute.
House Bill No. 4186 was introduced on February 5, 2013 and was referred to the Committee on Criminal Justice. The bill was proposed to ease some of the current restrictions and limitations regarding eligibility for expungements and, quite frankly, make the process more flexible – especially as it relates to those with a prior felony conviction. Here is a link to the proposed bill:
Unfortunately, the bill has languished since being introduced and at last check was only referred for a second reading as of May 15, 2013. It has never even been voted on and only time will tell if this bill, or a modified version, will ever be put into law.
How do I find out if I am eligible for an expungement under the current law? Outlined below are a series of important preliminary questions that can assist in determining eligibility:
Do you have a criminal conviction from a federal court?
Do you have a criminal conviction in another state?
Do you have another adult criminal conviction in Michigan, excluding those for which judgment of guilt was deferred and excluding up to 2 minor offenses as defined in MCL 780.621 (10)(b)?
Were you convicted of a felony or an attempt to commit a felony for which the maximum punishment is life imprisonment?
Were you convicted of felony criminal sexual conduct (1st, 2nd or 3rd degree), or assault with intent to commit criminal sexual conduct?
Is the conviction you want to have set aside a misdemeanor or felony traffic offense? A traffic offense is a violation of the Michigan Vehicle Code or a local ordinance substantially corresponding to that act that involves the operation of a vehicle?
Has it been less than 5 years since the date of your conviction, or if you were imprisoned, has it been less than 5 years since you were released?
If all of the above questions are answered "NO" then you
may be eligible to have your conviction set aside. However, if
any question is answered "YES", you are not eligible to have your Michigan criminal conviction set aside. Of course, eligibility is never a guarantee that your criminal conviction will be set aside and consulting our office for legal counsel on how to navigate the complicated application and hearing process for expungement is always recommended. For more information about whether you may be eligible for an expungement of a previous crime, contact Freedman & Freedman today!
This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice please contact Freedman & Freedman or an attorney in your community who can assess the specifics of your situation.