CLEAN SLATE ACT—EXPUNGEMENTS

Michigan’s “Clean Slate Act,” MCL 780.621 et seq., which became effective April 11, 2021, dramatically expands the scope of criminal convictions that may be set aside or expunged. Under the old law, only one eligible felony conviction or two eligible misdemeanors could be expunged.

Criminal records can negatively affect opportunities for employment, education, loan acceptance, residential living, and other major life events. A University of Michigan Law School study found that people who have criminal convictions expunged experience around a 23% rise in their income within one year. See https://repository.law.umich.edu/cgi/viewcontent.cgi?article=3167&content=articles. Expungement of Criminal Convictions: An Empirical Study (umich.edu)

The “Clean Slate Act” establishes two processes for expunging convictions:

(1) Non-Automatic or “Traditional,” effective April 11, 2021

(2) Automatic, effective April 11, 2023

I. NON-AUTOMATIC OR “TRADITIONAL” PROCESS

A. How Many Convictions Can Be Expunged?

· Unlimited number of eligible misdemeanor convictions

· 3 eligible felony convictions

· Not more than 1 felony conviction for the same offense set aside under the Act if the offense is punishable by more than 10 years

· 2 “assaultive crime” misdemeanors. “Assaultive crime” is defined in MCL 780.621(4)(a).

· 1 Operating While Intoxicated (OWI) conviction for any of the following:

  • MCL 257.625(1)—OWI, OWI-Hi BAC, OWI-Drugs (Non-Schedule 1)

  • MCL 257.625(2)—Allow Person to OWI, OWI-Hi-BAC

  • MCL 257.625(3)—Operate While Visibly Impaired (OWVI)

  • MCL 257.625(6)—Minor Operate Unlawful Bodily Alcohol Content

  • MCL 257.625(8)—Operate While Intoxicated Drugs-Schedule 1 Drug

B. Eligible Convictions

Non-Traffic

All felonies and misdemeanors, EXCEPT:

  • Life-offense felonies, including “attempts” to commit life-offense felonies.

  • Criminal Sexual Conduct (CSC)

  • 1st Degree (Sexual Penetration w/Aggravating Circumstances)

  • 2nd Degree (Sexual Contact w/Aggravating Circumstances)

  • 3rd Degree (Sexual Penetration)

  • 4th Degree (Sexual Contact) [Expungements of CSC-4th Degree convictions are only permitted if the conviction occurred before January 12, 2015]

  • Assault with Intent to Commit CSC-2nd

  • Assault with Intent to Commit Sexual Penetration.

  • Child Abuse-2nd Degree.

  • Child Abuse-2nd Degree committed within the presence of another child

  • Child Sexually Abusive Material (CSAM)

  • Use Internet or computer to commit listed crime

  • Felony conviction for Domestic Violence if a previous conviction was misdemeanor Domestic Violence

Traffic

All felonies and misdemeanors under the Michigan Vehicle Code, MCL 257.1 et seq., EXCEPT:

  • OWI-2nd or OWI-3rd (or subsequent)

  • OWI-Occupant Under 16 (Child Endangerment)

  • Traffic offenses causing death or physical injury

  • Traffic offenses involving operation of a commercial vehicle (or a commercial vehicle violation)

Marijuana

Special rules apply to marijuana convictions. Under MCL 780.621e, the following misdemeanor marijuana convictions may be set aside:

  • Possession of marijuana, MCL 333.7403(2)(d)

  • Use of marijuana, MCL 333.7404(2)(d)

  • Marijuana paraphernalia, MCL 333.7543

  • A local ordinance substantially corresponding to the foregoing crimes

C. Wait Period

  • 7 years if setting aside more than one felony

  • 5 years if setting aside one felony—or one or more serious misdemeanors

  • 3 years if setting aside one or more non-serious misdemeanors

  • No wait period for certain convictions related to human trafficking

  • No wait period for marijuana convictions

The wait period runs from the latest of the following dates:

  1. Imposition of sentence

  2. Completion of probation

  3. Discharge from parole

  4. Completion of imprisonment for that case

  • No criminal charges can be pending

  • No convictions during the applicable wait period required above

  • If denied by a Court, you must wait 3 years from the date of denial to apply again

II. AUTOMATIC PROCESS

A. Automatic process vs Non-Automatic or “Traditional” process

  • No application or court hearing is needed

  • Wait times are longer

  • Scope of eligible convictions is smaller

  • Unavailable for certain crimes, like “serious misdemeanors” and felonies punishable by 10 years or more (and some crimes that may not be eligible under the Automatic process but are available under the Non-Automatic process)

B. Eligible Convictions

The Automatic process is available for misdemeanors punishable under 93 days and many felonies. The Automatic process is not available for certain misdemeanors (93 days or greater) and any of the following felonies:

  • Assaultive crimes (or attempts)

  • Serious misdemeanors (or attempts)

  • Crimes of dishonesty (or attempts)

  • 10-year or more felonies (or attempts)

  • Crimes that have an element involving a minor, vulnerable adult, injury or serious impediment, or death

  • Any 93-day or more misdemeanor or felony if the person has more than one assaultive conviction (or attempt to commit an assaultive crime) that is recorded with MSP

C. Wait Period

  • 7 years for 92-day or less misdemeanors (regardless of whether recorded or maintained in Michigan State Police database)

  • 7 years for 93-day or more misdemeanors that are recorded in MSP database

  • 10 years for felony offenses that are recorded in MSP database

III. SAME TRANSACTION OFFENSES COUNTED AS ONE OFFENSE

MCL 780.621b sets forth a “same transaction” test or rule for contemporaneous convictions that arose out of the same transaction and occur within 24 hours. Consequently, multiple felony convictions will be treated as one felony conviction—and multiple misdemeanor convictions will be treated as one misdemeanor conviction. However, the following convictions are INELIGIBLE under this rule:

  • Assaultive crimes

  • Convictions involving the use or possession of a dangerous weapon

  • 10-year or more felonies

  • Convictions from another state that would be considered an assaultive crime in Michigan

IV. LEGAL EFFECT AND VIEWING OF EXPUNGED CONVICTION

The expunged conviction becomes a “non-public” record kept by the Michigan State Police that may be viewed and used by the following agencies:

  • Governor

  • Courts and prosecutors (for pardon decisions, employment with MDOC/law enforcement, plea bargaining, licensing through the judicial branch, sentencing for a felony or misdemeanor punishable by more than 1-year of imprisonment, and in future set-aside applications)

  • Law enforcement agencies

V. LIMITATIONS ON EXPUNGED CONVICTIONS

  • The person is not entitled to the return of any fines, costs, or other money paid as a consequence of the conviction

  • The person must still pay any outstanding restitution

  • The person is still considered “convicted” for purposes of Michigan’s Sex Offenders Registration Act (SORA) if the conviction is a “listed offense” under SORA

  • The conviction may be used for charging a new crime as a 2nd or subsequent offense or for sentencing habitual offenders

  • The victim of the crime may still initiate a civil action for damages

  • The conviction does not create a legal right to sue for damages for incarceration

  • The defendant retains double-jeopardy protections from the set-aside conviction

  • When a misdemeanor marijuana conviction is set aside, the defendant may not seek resentencing on another conviction where the marijuana conviction was considered at sentencing or used in the Sentencing Guidelines for that other conviction