Setting Aside a Conviction

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Setting aside a conviction, commonly called expungement, has the effect of removing a criminal conviction from a person’s public record. This allows you to tell potential employers and others that you have not been convicted of a crime.

Requirements for Setting Aside a Conviction

Only certain types of convictions can be set aside. The following types of convictions are NOT eligible for expungement:

  • Felony convictions for which the maximum punishment is life in prison
  • Violations or attempted violations of certain criminal sexual conduct statutes
  • Misdemeanor traffic offenses, such as drunk driving, driving without a license, or any other criminal misdemeanor under the Michigan Vehicle Code

In addition, there are other requirements to determine whether a conviction may be set aside. A person that has more than one conviction may not expunge a conviction. Expungement is unavailable even if an individual’s multiple convictions arose from the same criminal occurrence and happened on the same date. There may, however, be an exception to this restriction if the other conviction is a “minor offense” as defined by statute.

If a person has previously had a conviction set aside due to a deferred sentence, plea under advisement, or the Holmes Youthful Trainee Act, MCL §§ 762.11 – 762.16, the individual can still proceed with expungement as long as there is only one conviction presently on his or her record. It should be noted though, that previous convictions that have already been set aside may be negatively considered by the court in determining whether to grant the expungement.

The sentencing for the conviction to be set aside must have been completed at least five years ago. A sentencing is not considered “completed” until any term of imprisonment has been finished. Finally, there must not be any pending criminal charges against the person.

The Expungement Hearing

Once you have prepared and filed the application to set aside a conviction, provided notice to the state police, the attorney general, and the prosecutor’s office, and completed all other statutory requirements, the court will schedule an expungement hearing. The expungement hearing must be held at the court that issued the conviction. This can be a hassle if the conviction occurred while on vacation or far away from home.

If the crime to be expunged was assaultive in nature, the prosecutor will provide the victim with notice of the request for expungement. Accordingly, you should be prepared for the possibility that the victim will contact the court or appear at the expungement hearing.

Factors Considered by the Court

It is important to note that even if you meet all of the above requirements, you are not automatically entitled to an expungement. The actual setting aside of the conviction is still up to the court.

Different courts vary in their handling of expungement hearings. Some will grant the expungement as long as the applicant is eligible (i.e. meets the requirements discussed above). Other courts will want to see additional evidence of the applicant’s good character. It is advisable to be prepared for the latter. Some common factors that may be considered include the following:

  • If the applicant has been in school
  • If the applicant has been working
  • If the applicant has done volunteer work or community service
  • If the applicant has been rehabilitated (e.g. drug or alcohol intervention or counseling, psychological treatment, etc.)

You should be ready to produce evidence of such factors that may include school transcripts, resume, letters of reference from employers, evidence of community service, documentation of rehabilitation, and letters of support from family and friends.

Effect of Expungement

Once a conviction has been set aside, you are legally considered not to have been convicted of a crime. You may honestly answer “no” if a potential employer asks whether you have been convicted of a crime. In Michigan, most employers are not legally permitted to ask about criminal history that did not result in a conviction.

There are, however, exceptions that may cause problems even after an expungement. First, you should be aware that only the actual conviction has been removed from your record. The expungement process does not erase records such as arrest reports and court proceedings. These records may still be accessible to prospective employers and others.

Employers in other states are subject to different laws, and may be allowed to inquire about arrests that did not result in a conviction. Certain licensing agencies may be allowed to ask about arrest records even without a conviction. Colleges are free to ask about anything to do with a person’s criminal history. Landlords can also ask about arrests.

Finally, convictions that are set aside may still show up on abstracts from the Secretary of State, are still considered convictions for purposes of immigration deportation, will not change registration as a sex offender, and can still be considered in sentencing if the person is ever conviction of another crime.

Resources:

Michigan’s expungement statute is located at MCL §§ 780.621, et seq.
Individuals can obtain a copy of their Michigan criminal history for $10.00 from the state police website at http://apps.michigan.gov/ICHAT/Home.aspx.