In October 2020, the Michigan legislature enacted a group of bills collectively known as the “Clean Slate‘ package. Generally, their objective is to expand the eligibility and make it easier for those with certain convictions to set aside, or as more commonly known, expunged.
These bills impact the rules and procedures an individual may use to seek and have prior convictions set aside. Some of the bill make several changes to the existing paper application process and eligible offenses. Some of the bills create a new automatic process to set aside eligible offenses without requiring an individual to file an application.
These bills, especially those involving the automatic processes, require technical changes be met. The implementation of automatic processes requires the development of necessary technology not yet in existence. The legislature provided for a two-year development time before the implementation of the automatic processes will start.
The Cadillac News ran an article a few months ago on it; however, I felt that it may be helpful for the public see more of the law.
In Public Act 191, the law expanded eligibility of offenses. Previously, one could only apply to set aside 1 felony and 2 misdemeanors under certain circumstances. That has increased from one felony to three, not more than two of which can be for an assaultive crime. It also now prohibits one from having more than one felony for the same offense if it was punishable by more than 10 years.
In Public Act 187, the law specified convictions of certain offenses that could not be set aside. Those include any felony or attempted felony punishable by up to life; offense involving the exploitation and delinquency of minors; certain traffic offenses, such as drunken driving or any traffic offense involving injury or death; human trafficking; and felony domestic violence where there was a prior.
In Public Act 188, the law is commonly referred to as the “One Bad Night‘ law. It provides that multiple felony or misdemeanor convictions must be treated as one felony or one misdemeanor if they occurred within a 24 hour period and arose out of the same transaction. There are exceptions, however, such as if there were assaultive crimes, dangerous weapons, or had a maximum punishment of 10 years or more.
In Public Act 190, the law added time periods before one may apply for expunction. If one is seeking to set aside more than one conviction, one must wait seven or more years after completion of sentence or discharge from probation or parole. If one is seeking to set aside 1 or more serious misdemeanors or 1 felony, one must wait 5 or more years. If one is seeking to set aside 1 or more misdemeanor convictions, one must wait three years.
In Public Act 193, while set aside convictions are made non-public records, they are still available to some entities for making charging, plea offer, and sentencing decisions. While the conviction may be expunged from public view, there is still and MSP record. This act also says that restitution, if not paid, is still owed. Moreover, set aside convictions cannot be used in actions of negligent hiring, admission, or licensing against any person. Additionally, it also still allows set aside convictions to be used for charging and sentence enhancements on new charges.
In Public Acts 189 and 192 address marihuana related set aside changes. While it requires an application, it creates a rebuttable presumption in favor of the applicant if the offense was committed before Dec. 6, 2018, which is when the new “recreational‘ marihuana law took effect.
In Public Act 193, the law requires the MSP and courts to automatically set aside certain convictions without filing an application. This is the provision that does take effect for 2 years. It has as a scale of which misdemeanors and felonies which are automatically set aside after 7 or 10 years have passed since finality of the sentence. Again, there are some exceptions, such as certain assaultive crimes, crimes of dishonesty (i.e. larceny), crimes involving minors of vulnerable adults, human trafficking, and crimes resulting in serious impairment and death. This law requires the development of a computer-based program that would be accessible to each court. This is why this law does not take effect for two years.
Please note that judges are bound by the Judicial Canons of Ethics. We are required to respect, observe, and be faithful to law. A judge should be unswayed by partisan interests, public clamor, or fear of criticism. Judges are, however, permitted to speak, write, lecture, and teach on the law. This information is provided within those principles.
Nearly each of these bills passed with overwhelming support by both parties in both the house and senate. This is but a summary. If you have any specific questions, please direct yourself to www.legislature.mi.gov or a legal advisor. Do not call the court, court staff, or county clerks as they are unable to provide any advice.
Elmore is the Circuit Court Judge for Wexford and Missaukee counties.