Expungement of Michigan Criminal Convictions

Michigan amended the statutory provisions governing the setting aside of eligible convictions in 2020, with the changes becoming effective in 2021.  One of the provisions included in the amended statute was an automatic setting aside of eligible convictions, effective this year. 

The Michigan State Police (MSP) is the agency responsible for the development and maintenance of the automatic setting aside of eligible convictions. On April 11, 2023, MSP’s “Rules Engine” went live. Since then, some people have noted their eligible convictions have been set aside. Others, who may be eligible, have not seen their convictions set aside. So, what’s the scoop? And is there a difference between the automatic setting aside of convictions the setting aside of convictions by application?

There are some significant differences between the automatic setting aside of convictions or setting aside of convictions – these differences are shown below.

Types of convictions eligible to be set aside:

        Automatic Set Aside:

• Misdemeanors with less than 92 days imprisonment as the maximum punishment.

• Crimes that are not eligible to be automatically set aside:

  • Assaultive types of crime – examples include assault, homicide, robbery, stalking, kidnapping, rape & manslaughter.

  • Serious misdemeanors including domestic violence, including the assaulting of a pregnant woman, breaking and entering or illegal entry, child abuse in the 4th degree, contributing to the delinquency and neglect of a minor, using the internet or computer to make a prohibited communication, operating while under the influence of an intoxicating substance, stalking, or operating a vessel while under the influence of an intoxicating substance.

  • A crime of dishonesty, such as embezzlement.

  • Any offense punishable by 10 or more years imprisonment.

  • Human trafficking.

  By Application:

• Assaultive type crimes.

  • Caveat:  a person is limited to setting aside two assaultive type crimes in their lifetime

  • This includes domestic violence, stalking.

  • Child abuse in the 4th degree if the conviction occurred before January 12, 2015.

• Single operating under the influence conviction, assuming no harm, injuries or death occurred as a result of the impairment;

• A victim of human trafficking.

• Marijuana offenses.

  • There are some rules governing the setting aside of marijuana related offenses. 

  • Depending on the marijuana offense, the conviction may be eligible to be set aside through Michigan’s expedited process.

Timing that must happen before a conviction can be set aside:

        Automatic Set Aside:

• Felonies:  10 years must lapse;

• Misdemeanors:  7 years must lapse.

By Application:

• One or more felonies:  7 years must lapse

• One or more serious misdemeanors, first operating under the influence of intoxicating liquor or a single felony:  5 years must lapse.

• One or more misdemeanors:  3 years must lapse.

Number of offenses that can be set aside:

         Automatic Set Aside:

• Felonies:  2 felonies can only be set aside automatically in a person’s lifetime;

• Misdemeanors:  4 misdemeanors can only be set aside automatically in a person’s lifetime.

         By Application:

• Felonies:  3 felonies can be set aside

  • Term of imprisonment must be evaluated before attempting to set aside any felony conviction.

• Misdemeanors:  currently unlimited.

Costs:

 In general, all fines/costs/restitution must be paid before one can have any convictions set aside, whether by application or automatically.

Automatic Set Aside:

No cost to the person eligible for automatic setting aside of convictions.  Currently, MSP is requiring the various state courts to review the convictions automatically set aside and determine whether, from the court’s perspective, the automatic setting aside of a person’s convictions stands.

By Application, including the expedited process of setting aside marijuana convictions:

•   Certified copies of Judgement of Sentence and any other documents (Successful release from probation) required:  generally $10/conviction.

•   Fingerprints: 

  •    Fingerprinting is required (except for marijuana convictions eligible for the expedited process.  Fingerprinting must be ink-rolled. Livescan (digital) images are ok if the vendor is able to download the digital images onto the required stock fingerprint card. 

  • Cost varies by agency/vendor.  In our experience, the cost has ranged from $0 to $50.

•   Michigan State Police are required to conduct a final criminal background check as part of the process of setting aside convictions. (Not required for the expedited marijuana process).

  • The cost is $50/court. 

  • MSP has told us that if a person has convictions in both a county’s circuit court and district court, if both applications are submitted together, MSP will conduct the final criminal background check for $50.

  • Payment must be made by either personal check or a money order payable to the State of Michigan.

Length of time for conviction to be set aside:

        Automatic setting aside of convictions:

        The automatic setting aside of convictions is occurring on an ongoing, rolling basis. MSP has apparently started the process by working forward (oldest to newest). Michigan’s courts are now required to upload data to MSP on a daily basis.

        Unknowns include: 

How far back MSP is going.  Clients with really old convictions (older than 30 years) that are otherwise eligible for the automatic setting aside of convictions are not having these convictions automatically drop off. In addition, Wayne County has for years refused to submit convictions to MSP for entry into the Law Enforcement Information Network (LEIN). Downstate colleagues are reporting this is presenting issues for clients seeking to set aside Wayne County convictions.

        By Application:

       The length of the process is dependent upon a lot of different variables. These variables include the client’s ability to get documents to attorneys. Currently, Michigan’s courts are swamped. Part of the issue is the backlog because of COVID; Michigan’s courts continue to try and work through the backlog, in addition to keeping up with the current cases. Throw in the now added requirement of daily uploading of data to MSP, and the courts are overwhelmed and understaffed.  

Downstate colleagues continue to report (2 years into this) clients are experiencing long delays in being able to obtain the required documents.

        Attorney workloads are also an issue. Much like the courts, attorneys continue to play catch-up with delayed trials, hearings and proceedings. As well as continue to provide services to clients with new issues.

        In our office, we have experienced the US Postal Service losing documents during this process. When this happens, everyone essentially has to start over.  We haven’t noticed as many lost documents over the last six months, but we continue to experience significant delays in the mail and getting documents from and to clients for signature. 

        It has taken up to two months for MSP to complete their background check. MSP then forwards their findings to the Michigan Attorney General’s Office for their blessing. Despite an upgrade in software last year, the AG’s office continues to require at least four months to process the application and send their findings to both the courts and attorneys. Whether the automatic setting aside of convictions will decrease their workload has yet to be seen. In general, it is currently taking about six months from the time a client begins the process to the time of a hearing.