Clean Slate expungement law basics
In the past, Michigan allowed the expungement of one qualifying felony conviction, so long as the applicant didn’t have more than two misdemeanors on his/her criminal record, or expunge two qualifying misdemeanor convictions, so long as the two misdemeanor convictions were the only criminal history for the applicant. Not nearly enough people with criminal convictions exercised their rights to expungement. The Clean Slate expungement law radically changes how a criminal expungement occurs. In the past, a person would file an application to remove the criminal conviction with a court. There would be a hearing before the judge. The Clean Slate expungement law creates an automatic expungement system for qualifying criminal convictions, in other words, no application is filed in court and there is no hearing before a judge. However, Clean Slate still allows the application procedure, like in the past. Under the Clean Slate expungement law, if a person is convicted of a qualifying crime, then the person experiences several years of crime-free life, the conviction will be expunged automatically, or it falls off of the person’s criminal history.
Clean Slate and the bad part
After waiting for over a year, the Clean Slate expungement law was passed and signed. Clean Slate expungement law has generated a lot of media coverage in Michigan, most appealing to me and many of my clients was the idea of increasing the number of convictions that may be expunged. The current statute allows people with 1 felony and 2 misdemeanor convictions to expunge the felony. The media coverage touted that Clean Slate would increase the expugnable offenses to 3 felonies. These media stories created a lot of hope in people who are struggling with the ramifications associated with criminal convictions.
When the bills passed, I printed them out and enthusiastically dug in. What I found was profoundly disappointing. Clean Slate will likely help very few people with criminal convictions right now. Clean Slate creates automatic expungement that will only apply to a person’s last conviction. If someone has a criminal conviction, then they are convicted of a subsequent crime, the subsequent criminal conviction will lock the first conviction and render it ineligible for expungement. For Example:
1993 Misdemeanor conviction
1995 Felony conviction
2004 Misdemeanor conviction
2021 File for expungement of the 1995 Felony conviction.
The 1995 Felony conviction is ineligible for expungement because of the 2004 misdemeanor conviction. MCL 780.621(4)(c). What Clean Slate does is create a system where convictions will fall off or are automatically expunged, over varying amounts of time, but only if there are no subsequent convictions since the last conviction. The Clean Slate expungement law does not allow attorneys and their clients to hop over the last conviction and expunge an earlier conviction. The promise of 3 expungable felonies is only true for people in the future, not the people with felony convictions today. If you are interested in reading the troublesome statute, you can view the statute here. Click Here. MCL 780.621d(4)(c).
In conclusion, the Clean Slate expungement law has caused some controversy among lawyers that routinely perform expungements for their clients. Until MCL 780.621d(4)(c) is interpreted by the courts, the viability of removing three felony convictions for people with convictions in their history today is in doubt. The legislation creates the need for a test case, just like the early days of the Michigan Medical Marijuana Act(MMMA). Maybe the right client will come along that is willing to appeal the restrictive statute within Clean Slate to the Michigan Court of Appeals.
Does Clean Slate help people that already have criminal convictions?
Yes. Misdemeanor marijuana convictions may be expunged with a simplified process beginning on April 11th, 2021. There is no limit. See below for a discussion of this process.
Under limited circumstances, 2 or more felonies, or 2 or misdemeanors, may be counted as a single felony or misdemeanor. When a person gets into trouble with the law, often they are charged with multiple crimes related to one incident. On a criminal complaint filed in court, there will be more than one count, or charge, against the person. MCL 780.621b allows multiple convictions related to the same incident within 24 hours to be counted as one offense. If an applicant’s last stop in court resulted in multiple convictions as described above, then Clean Slate will help the applicant. This “count it as one conviction” rule is limited and requires careful review to determine eligibility.
So long as the underlying conviction qualifies for expungement, and the applicable amount of time has passed since then, a person’s last conviction may be expunged automatically. The automatic expungement will not begin until 2022, 2-years after the passage of the Clean Slate expungement law. A person that doesn’t want to wait for automatic expungement may use the application process.
Misdemeanor marijuana convictions under the Clean Slate expungement law
MCL 780.621e rewrites the procedure and necessary elements for an expungement application for marijuana misdemeanor convictions. An unlimited number of marijuana misdemeanor convictions may be removed from a person’s criminal history. The application is streamlined and very little is needed to complete an application and file it in court. Removed are the requirements found in the normal application for an expungement, such as service of the application/petition upon the Michigan Attorney General and fingerprint cards sent to the Michigan State Police. Submitting fingerprint cards to the MSP typically holds up the procedure for up to 90 days.
This public desire to remove these convictions also manifests in the procedure and presumptions built into the statute. A simplified application for expungement must be filed and served upon the Prosecuting attorney. Once the application is filed with the court, the Prosecuting attorney has 60 days to answer. If the prosecutor doesn’t answer, the Court must sign the expungement order within 21-days.
This statute also eliminates the standard used for your normal application for a criminal record expungement. The normal standard: Looking at the time from conviction to filing of an application for expungement, is setting aside this conviction consistent with the public welfare. In a nutshell, your typical applicant/petitioner for expungement has to prove to the court that since the conviction, the applicant/petitioner has lived a normal, lawful, life. MCL 780.621e abandoned this standard. Using instead a rebuttable presumption in favor of expungement.
This presumption that a misdemeanor conviction for marijuana should be expunged may be challenged by the prosecutor. If the prosecutor files an answer to the application, at a hearing, the prosecutor must show:
“At the hearing, the prosecuting agency must prove by a preponderance of the evidence that a conviction or convictions sought to be set aside by an applicant were based upon conduct that would constitute a criminal violation of the laws of this state or a political subdivision of this state if it had been committed on or after December 6, 2018.” MCL 780.621e
What are the circumstances in which a prosecutor may refute the expungement presumption and prevent the expungement? The first situation that comes to mind would be when facts and circumstances for the original convictions would still be illegal today under the Michigan Regulation and Taxation of Marijuana Act (MRTMA). MRTMA is the law that made recreational marijuana use/possession legal in Michigan. Conduct such as driving under the influence of marijuana, possession/use of marijuana by a person under 21, transporting marijuana improperly in a vehicle, and consuming marijuana in an automobile. Basically conduct that isn’t protected by MRTMA today. Probably the largest group of ineligible convictions under MCL 780.621e will be people that have misdemeanor use/possession of marijuana convictions while they were 17,18, 19, and 20 years old. The second situation that I can imagine would be when someone is charged with a felony, but through the pretrial negotiations, the parties reached a deal where the defendant would plead to a one-year misdemeanor marijuana possession. There are a lot of people that decide to enter a plea to a lesser included offense, not because they have a poor chance at trial, rather because the stakes are very high and a plea adds certainty to a frightening situation. Keep in mind that Clean Slate is a brand new law and the courts will interpret the statute further defining how and when a prosecutor may rebut the presumption in favor of expungement.
Another question that comes to mind is whether prosecutors will even bother contesting misdemeanor marijuana applications for expungement. Someone at the prosecutor’s office will have to examine the old files and make a decision. This requires time and effort by staff, time that may be better served on current cases. As Clean Slate rolls out, prosecutor’s office across the state may simply ignore these filings thereby allowing these expungements to take place uncontested.
What crimes cannot be expunged in Michigan
A conviction for the following may not be expunged under the Clean Slate expungement law:
1. A felony or attempted felony where maximum punishment is life in prison.
2. A violation or attempted violation: Child Abuse 2nd Degree(MCL 750.136b); Child Abuse 2nd Degree in presence of another child (MCL 750.136d(1)(b)); Child Abuse 2nd Degree in presence of another child, 2nd or subsequent offense(MCL 750.136d(1)(c); Child Sexually Abusive Material-Possession of Child Abusive Material(750.145c); Use of Internet or Computer for Certain Crimes(MCL 750.145d); CSC 2nd Degree(MCL 750.520c); CSC 3rd Degree(MCL 750.520d); Assault with Intent to Commit Sexual Penitration or Contact(MCL 750.520g).
3. A violation or attempted violation of CSC 4th Degree if convicted prior to Jan 12th, 2015.
4. Traffic Offenses: a) Any Operating While Intoxicated offense. b) Any traffic offense with a CDL license operator while operating a commercial vehicle. c) Any traffic offense that causes injury or death.
5. A felony Domestic Violence conviction if the person has a prior misdemeanor domestic violence conviction.
6. A conviction for Human Trafficking(MCL 750.462a to 750.642h) and Terrorism(MCL 750.543a to MCL 750.543z).
I need help with a criminal record expungement in Michigan
Clean Slate will be effective law on April 11th, 2021. Until then, if you are a person with one felony conviction and two or less misdemeanor convictions, you are about to lose your ability to expunge the felony conviction. Keep in mind, the conviction history that will lose the ability to expunge the single felony conviction is the following: One felony conviction followed by a misdemeanor conviction, no more than a total conviction history of one qualifying felony conviction and two misdemeanor convictions from all states in the USA. If your criminal history looks like the above, your window for relief is closing. The criminal expungement process starts with three questions: 1) Do you have a deferred or none public conviction from Michigan or any other state? 2) Do you have a conviction in any other States? Don’t assume a traffic related offense wasn’t a misdemeanor conviction. 3) Do you know what crime you committed? Pay the $10 to pull your Michigan public criminal history from Ichat, the Michigan State Police website. Click here. If you don’t have access to the internet I can do this step for you.
For $160.00 I will provide a criminal conviction expungement review. I will determine what convictions may be expunged under the Clean Slate expungement law, and more importantly, whether the client is about to lose their ability to remove a felony conviction. I will provide a game plan for removing convictions after April 11th, 2021. For marijuana misdemeanor convictions, my expungement services start at $500.00. Call today to get started, 231-883-4170