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Monday, July 25, 2011
By Michael Nichols
More people will have the opportunity to remove a criminal conviction in Michigan thanks to changes in the law on setting aside a conviction or "expungement," that Mike Nichols helped push through the legislature. "However, people convicted of even impaired driving will never be able to wipe the record clean," Nichols said. Nichols serves on the rules and laws committee for the Criminal Defense Attorneys of Michigan. He helped draft the group's position statement and testified in favor of the original legislation. He said "this law is a 'watered-down' version of the initial draft and not as sweeping but it's an improvement."
Previously, a person could have no more than 1 conviction in his lifetime to be eligible for an expungment. The new Expungement law, MCL 780.621, was adopted June 23, 2011. After five years of a conviction or five years after imprisonment for the conviction, a person with no more than 2 minor offenses can apply for an order by the court to set aside a conviction. This does not apply to felonies: with a maximum punishment of life, a conviction of an attempt to commit a felony that has a maximum punishment of life, sexual abuse of a child under 18, internet crime against a minor under 18,CSC in the second degree, CSC in the third degree, assault with intent to commit CSC.
The application must contain:
1. Applicant’s full name and current address.
2. Certified record of conviction to be set aside.
3. Statement that applicant has not been convicted of another offense , other than one trying to get set aside, or 2 minor offenses if applicable.
4. Statement as to whether or not the applicant has filed an application to get another offense set aside, and if so the disposition of that application.
5. A consent to use the nonpublic record under section 3.
6. $50 fee made payable to the state of Michigan.
The applicant must submit a copy of the application along with two sets of fingerprints to the department of the state police. The department of state police will compare the fingerprints to the unofficial prints, the prints on their file, and the prints on record with the FBI. The state police must report their findings as to if the applicant has pending charges, record of conviction, and setting aside of any other conviction to the court where the petition is on file. The court can’t respond to the application until this is done.
A copy of the application will be served to the attorney general and the prosecuting attorney who prosecuted the crime, and both will have the opportunity to contest the application. If the application is for an assaultive crime or serious misdemeanor the victim will be contacted by the prosecutor. The victim, under the “William Van Regenmorter’’ act, has the opportunity to appear or make an oral statement regarding the set aside of the conviction. When reviewing the application the court may decide if filing of affidavits and the taking of proofs is necessary. Ultimately, the court has the discretion whether or not to "expunge" a conviction. Therefore, expungement is not a right but a privilege.