Michael J. Nichols

In The News

Monday, March 29, 2010

Can A Conviction Be Set Aside When The Conviction Results In License Sanctions?

By Michael Nichols
Categories: Michael J. Nichols

A conviction may be set aside (also called “expunged) under MCL 780.621 et seq. so long as it is not a prohibited offense. The statute of course, does not establish the right to set aside a conviction but enables a defendant to Petition the Court to Set Aside a conviction once five years passes from the date of sentencing or the last day of incarceration. Under the statute, the trial court is required to focus on the circumstances and the behavior post-conviction of the Petitioner in deciding whether to expunge the offense. The nature of the offense has nothing to do with whether to grant the request so long as it is not a prohibited offense under the statute, People v Boulding, 160 Mich App 156 (1986).

Most Criminal Sexual Conduct (CSC) offenses specifically, those found at 520c-g (including attempts) of the Penal code are convictions that cannot be expunged. Additionally, a conviction for which the maximum penalty is life is prohibited from the set aside provision. Finally, a traffic offense is prohibited from being set aside. The third area of prohibited convictions has been a battleground in the last few years between the attorney general’s office and the defense bar. The Attorney General’s office has been filing statements in opposition to Petitions to Set Aside Convictions in several cases in which the conviction resulted in an abstract to the Michigan Secretary of State (Controlled Substance offenses and Negligent Homicide, for example) arguing that the plain meaning of the Motor Vehicle Code expressly prohibits setting aside convictions that are abstracted.

The problem here is that the expungement statute defines things like “victim”; “assaultive crime” and “serious misdemeanor” but not, “traffic offense”. There is some guidance for the definition of traffic offense in People v Martinez, 211 Mich App 147 (1995)(citing MCL 762.11).

However, there is a section of the Motor Vehicle Code that has prompted the attorney general’s office to take a peculiar position on Petitions to Set Aside convictions that are abstracted to MI SOS regardless of whether they are found in the vehicle code. The section at issue is MCL 257.732. It requires that the Court maintain and abstract to the Secretary of State (SOS) certain convictions. The statute goes on to say at subsection 22 that the Court shall not Order the expunction of any of the enumerated offenses in that statute.

However, MCL 257.732 is a records-keeping statute. Further, it directly contradicts MCL 780.621, which only prohibits the three types of convictions listed above from the Set Aside rule. Further, the Court of Appeals has adopted the definition of “traffic offense” as one that is found under the Motor Vehicle Code in the Martinez case. Finally, in reviewing MCL 257.732, it is clear that the legislature is only prohibiting a Court from Ordering the SOS from “Ordering the expunction” of its records. It says nothing that prohibits the Court from Ordering the Michigan State Police from expunging the Petitioner’s Certified Criminal History.

An example occurred in Gratiot County when a petitioner sought to set aside a negligent homicide conviction under the penal code. The trial court ruled over the objection of the attorney general that the set aside statute did not prohibit the relief at all. The provision relied on by the Attorney General’s office in opposing the petition, MCL 257.732 was simply a provision that the Secretary of State had to maintain its records according to law and could not expunge the conviction from the petitioner’s master driving record.

In the meantime, expect the Trial Court hearing your Petition to exercise its broad discretion. Keep in mind that the Set Aside statute requires the Court to examine the “circumstances” and “behavior of the defendant” post-conviction in making its decision so long as the conviction is one that qualifies under the statute. One further practice tip: a citizen can petition for an expungement as many times as he or she wants, there is no bar in the statute from following the old axiom: “if at first you don’t succeed, try, try again.”

Michael J. Nichols is co-chair of the Ingham County Bar Association criminal law section. He is the author of the Michigan OWI Handbook published by Thomson West; a member of the National College of DUI Defense, the National Association of Criminal Defense Lawyers, the Criminal Defense Attorneys of Michigan and the State Bar of Michigan Criminal Law Section. mnichols@nicholslaw.net; 517.432.9000.

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Peer Recognition

Mike Nichols is a national leader in drunk driving defense. He is a member of the Forensic Committee and Michigan delegate to the National College for DUI Defense. He is also a Sustaining Member of the College. Nichols is also a founding member of the Michigan Association of OWI Attorneys; a member of the American Chemical Society; an associate member of he American Academy of Forensic Science, Adjunct Professor of Forensic Evidence in Criminal Law and OWI Law and Practice at Cooley Law School. He is also author of the West OWI Practice book and several chapters in other books on science and the law.

Mike Nichols is recognized by his peers in Michigan as a “SuperLawyer” in DUI/Criminal Defense. Nichols has also been asked to speak at conferences by groups such as the NCDD; Various Bar Associations in other states.