Expungement Statute Broadened

Effective January 12, 2015

Effective January 12, 2015, the Legislature broadened the list of those who may petition for expungement, but it also narrowed the list of eligible offenses. Writing on top of a statute that was amended previously in 2011, the Legislature has now created a set of rules that appear complicated at first glance.  In reality, the rules are not especially difficult and the changes are mostly positive.

For many years, adult offenders could petition to set aside a single conviction under MCL 780.621 et seq.  The rules were straightforward and the list of ineligible offenses was short.  Those convicted of life offenses (and attempted life offenses), certain sex crimes (and attempted sex crimes), and traffic violations were ineligible for relief.  An otherwise eligible applicant had to wait five years after the sentence was imposed, or five years after completion of any term of imprisonment, to file the application. The law was clear that those individuals who had multiple convictions on their record could not apply, and only, one conviction could be expunged.

In 2011, the Legislature revised the law to broaden the list of eligible offenders and at the same time narrow the list of eligible offenses.  The amendments permitted expungement of one eligible offense even if the individual had two additional “minor offenses” on their record.  “Minor offense” was defined as a misdemeanor or ordinance violation with a maximum penalty no greater than 90 days, a maximum fine of no more than $1,000, and a crime that was committed by someone no older than 21 years old.  MCL 780.621(1)(c).  The Legislature also expanded the list of ineligible offenses to include child sexually abusive activity, using the internet or computer to commit a crime, and attempts to commit these offenses. 2011 PA 64, effective June 23, 2011.

In late 2014, the Legislature once again amended the statute, this time to protect human trafficking victims who were convicted of forced prostitution.  The applicant may petition to expunge more than one prostitution conviction (referring only to those convictions under MCL 750.448, 449 and 450) if the applicant can prove by a preponderance of the evidence that each offense was committed as a “direct result of his or her being a victim of human trafficking.”  2014 PA 335, effective January 14, 2015.  Human trafficking refers to the trade in humans for labor, services or body parts, including forced prostitution. See MCL 750.462a to 462h.   The applicant seeking to expunge one or more prostitution convictions need not wait five years to file the application and there is no limit on the number of prostitution convictions that may be expunged.  See MCL 780.621(4) and (7) (previously subsections 3 and 5 of the statute).

Also in late 2014, the Legislature further modified the statute to broaden the list of eligible offenders and at the same time narrow the list of eligible offenses.  The Legislature also modified the timing requirements for the petition and created a three-year window during which re-application could not occur.

With 2014 PA 463, effective January 12, 2015, the Legislature expanded the list of eligible offenders to those who have two misdemeanor convictions and one felony conviction on their record.  In this setting, the individual may now petition to expunge the felony conviction for an offense-eligible crime.  If the individual has two prior misdemeanor convictions and no felony convictions of record, that person may petition to expunge both misdemeanor convictions (eligible crimes only).  The Legislature also narrowed the list of eligible offenses by precluding expungement of some child abuse convictions and also fourth-degree criminal sexual conduct.

At the same time, the Legislature modified the timing rules to require a five-year wait following completion of probation or parole (previously there was a five-year wait from the date of sentencing if the individual was placed on probation without incarceration, and a five-year wait from the date of release from prison).  The Legislature also added a restriction that precludes a second or repeated petition within three years following denial of an earlier petition (unless the trial judge expressly allows this).

In sum, the Legislature expanded the scope of eligible offenders while at the same time narrowing the list of eligible offenses.  The Legislature also lengthened the waiting period for those placed on probation or parole, and generally precluded re-application within three years of an earlier denied petition.

The expungement statutes are found at MCL 780.621 through 780.624.  The primary statute is MCL 780.621, and each subsection of this newly revised statute including the rules for fourth-degree criminal sexual conduct convictions both before and after January 12, 2015 are discussed below:

MCL 780.621 Now Provides:

(1)(a)  If an individual is convicted of not more than 1 felony conviction and two misdemeanor convictions, s/he may petition to expunge one eligible felony conviction.

(1)(b)  If an individual is convicted of no felonies and not more than 2 misdemeanors convictions, s/he may petition to expunge 1 or 2 eligible misdemeanors convictions. [1]

(1)(c)  If the individual is convicted of CSC fourth-degree before January 12, 2015, s/he may petition to expunge this conviction if individual has no other convictions beyond two minor offenses (minor offense being defined as committed while not older than 21, maximum penalty not to exceed 90 days, maximum fine not more than $1,000).  There is no relief for a CSC fourth-degree conviction entered after January 12, 2015.

(2)  The definition of “misdemeanor conviction” now includes convictions deferred or dismissed under certain liquor code provisions, drug court diversions, veterans court diversions, HYTA, 7411, domestic violence diversion, parental kidnapping diversion and certain health care violations. “Misdemeanor conviction” also includes violation of federal law, tribal law, the law of another state, ordinance violations, etc.  Note:  The definition of misdemeanor is relevant when determining the number of prior convictions for eligibility purposes.

(3)  The list of ineligible offenses now includes:  Child abuse second-degree and attempts; child abuse second-degree in the presence of another child and attempts; fourth-degree criminal sexual conduct and attempts (but only for convictions occurring after January 12, 2015); all traffic offenses including OWI; felony domestic violence convictions if the individual has a prior misdemeanor domestic violence conviction;
human trafficking convictions; anti-terrorism convictions; and the previously existing ineligible offenses of child sexually abusive activity and attempts; using the internet or a computer to commit a crime and attempts; first, second and third degree criminal sexual conduct and attempts;  assault with intent to commit criminal sexual penetration or contact and attempts; and offenses for which the maximum punishment is life imprisonment and attempts to commit those offenses.

(4)  Rules for forced prostitution as a result of human trafficking carried over from 2014 PA 335.

(5)  All applications/petitions except those under the human trafficking provisions must be filed five years or more after a) imposition of sentence, b) completion of probation, c) discharge from parole, or d) completion of term of imprisonment, whichever is later.

(6)  If the application is denied, it cannot be refiled for at least three years unless the court specifies an earlier date.

(7)  Human trafficking provisions carried over from 2014 PA 335.

by Anne Yantus
Managing Attorney
State Appellate Defender Office

Article published in Criminal Defense Newsletter, April 2015, Volume 38, Issue 7. For subscription information, contact Heather Waara at heather@sado.org.

Endnote

1.  The Legislature also modified MCL 780.624, which previously provided that “A person may have only 1 conviction set aside under this act.”  The statute now reads: “Except as provided in subsection 1 [MCL 780.621], a person may have only 1 conviction set aside under this act.”