Expungement of a Michigan Criminal Conviction

Expunging your Michigan criminal record means that your prior conviction is set aside. If you have a conviction expunged, you are considered not to have been convicted for most purposes. Your conviction can only be used for very limited purposes, such as increasing your sentence if you are convicted of a new offense. An expunged conviction is not supposed to appear on your rap sheet. Even after a case is expunged, the Michigan State Police continue to maintain a non-public record. In addition, there have been circumstances where a case is expunged but continues to show up on the internet by independent companies who compile and market information.

Setting aside a conviction removes a criminal conviction from the public record of the Michigan State Police, and is sometimes referred to as an expungement. The law that allows a person to apply to have a conviction set aside provides that the record be made nonpublic so that any criminal record check, made by someone other than those agencies specified in the law, would reveal no conviction.

Eligibility: 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 5 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 5 years have passed since being released from the term of imprisonment for that conviction.

You may want to consult with an attorney to determine if you are eligible for expungement and to represent you before the court. Ultimately, your case will be heard in the same court that handled the underlying case. An application will be filed with the court, attorney general, prosecutor and state police. In addition, a mandatory record check must be completed and your attorney will instruct you to obtain fingerprints from a law enforcement agency. The Attorney General of the State of Michigan reviews each application to determine whether it qualifies. Both the attorney general and the prosecuting official are given the opportunity to contest the application at the hearing. In addition, the prosecuting official will notify the victim of a crime and the victim has the right to appear at the hearing on the application and/or to make a written or oral statement. The Michigan State Police receives the application so that it can prepare a report for the court from its records and the records of the Federal Bureau of Investigation as to any pending charges against you (the applicant). The court cannot act upon your application until the Michigan State Police has submitted its report to the court. Hearing Required: The court will schedule the hearing date for you when you file the application. The hearing cannot be held until the court receives the Michigan State Police report required by MCL 780.621(5). Because it can often take a bit of time for the report to be prepared, it will not be uncommon for the court to schedule the hearing to be held on a date several months after you file the application.

On the hearing date, any of the following may happen: 1. The prosecuting official and/or a representative from the Attorney General’s Office may attend the hearing to contest the application. In that case, the court will hear what each has to say before making its decision. 2. If neither the prosecuting official nor the attorney general attend the hearing to contest the application, the court will make its decision based on the report from the Michigan State Police and the court’s own records. 3. If the charge for which you were convicted was an assaultive crime or a serious misdemeanor, and the victim of that crime attends the hearing and/or provides an oral or a written statement, the court will consider that statement before making its decision. 4. If you do not appear, the case will be dismissed. The hearing will usually take place at the court where the application was filed. The court may require the filing of affidavits and taking of proofs. If the judge determines that your circumstances and behavior from the date of your 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 an order setting aside your conviction.

The process to seek an expungement can be overwhelming and an attorney can provide valuable legal services to avoid any problems.

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