Michigan’s Clean Slate Legislation

These summaries address the 2020 amendments to Michigan’s set-aside statutes for adult convictions as part of the Clean Slate legislation passed by the Michigan Legislature in September 2020.  It does not address setting aside juvenile adjudications.  The statute permitting a court to set aside adult convictions is found at MCL 780.621 et seq., while the statute for juvenile set asides is found at MCL 712A.18e.

Prior to the Clean Slate legislation, an individual could move to set aside one felony conviction or two misdemeanor convictions. Ineligible offenses included those with a maximum penalty of life imprisonment (including attempts to commit these same offenses), most child abuse, child sexually abusive activity and criminal sexual conduct offenses, felony domestic violence if the individual was previously convicted of misdemeanor domestic violence, and traffic offenses.  See MCL 780.621 (pre-April 11, 2021).

Prior to the Clean Slate legislation, the waiting period was five years for filing an application (although there was no waiting period for offenses tied to being a victim of human trafficking). See MCL 780.621 (pre-April 11, 2021)

The Clean Slate amendments, generally speaking, were designed to increase the number of felony and misdemeanor convictions that could be set aside. Most of the Clean Slate amendments take effect April 11, 2021, although the automatic provisions do not take effect until at least two years from that date.

What To Know About A Successful Set-Aside

Eligible individuals should understand that a set aside is not an exoneration. Attorneys might consider advising applicants of the limits and continuing responsibilities under the newly revised application process of MCL 780.621 (the traditional application process), the new application process for marijuana convictions under MCL 780.621e, and the new automatic set-aside process created by MCL 780.621g, all effective April 11, 2021 or later.

  • The applicant is not entitled to return of any fines, costs, assessments or fees paid as a consequence of the conviction
  • The applicant must continue to pay restitution (if there is outstanding restitution)
  • The applicant is considered “convicted” for purposes of Michigan’s Sex Offender Registration Act
  • The conviction may be used for charging a new crime as a second or subsequent offense (i.e., for offenses that are based on prior convictions) or for sentencing habitual offenders under MCL 769.10 et seq.
  • The conviction will be part of a nonpublic record that is available to the governor, law enforcement, prosecutors and court for a variety of purposes including pardon decisions, employment with MDOC/law enforcement, plea bargaining, licensing through the judicial branch of government, sentencing for either a felony or misdemeanor punishable by more than one year of imprisonment, and for consideration in future set-aside applications.
  • The setting aside of a conviction does not affect a victim’s right to sue for civil damages
  • The setting aside of a conviction does not create a right to sue for damages for incarceration based on the set-aside conviction
  • When a misdemeanor marijuana conviction is set aside under MCL 780.620e, the individual may not seek resentencing on a previous conviction where the misdemeanor marijuana conviction was considered at sentencing or used in the scoring the sentencing guidelines for the previous conviction
  • The previously convicted individual retains double jeopardy protections with reference to the set aside conviction

2020 PA 193 (HB 4980), amending MCL 780.622, effective April 11, 2021 (general set aside rules); 2020 PA 189 (HB 5120), adding MCL 780.621f, effective April 11, 2021 (misdemeanor marijuana set aside rules).

A Note About Setting Aside Multiple Convictions

Many individuals looking to set aside a conviction may have more than one conviction of record. The Clean Slate legislation was passed to expand the number of convictions that could be set aside, but new language restricting its application to those who have no new conviction during the applicable wait period may pose a problem for many. See the discussion at the end of this document for potential concerns, interpretations and approaches.

Expanded Number of Convictions for
Traditional Application Process
(Non-Automatic)

Public Act 191 amends MCL 780.621 to expand the number of convictions eligible for the traditional application process (the non-automatic process) as follows:

  • An individual may move to set aside an unlimited number of eligible misdemeanor convictions
  • An individual may move to set aside up to three eligible felony convictions
  • An applicant may not have more than two convictions that are classified as assaultive crimes set aside during his or her lifetime. MCL 780.621(4)(a) defines “assaultive crime.”

An applicant may not have more than one felony conviction for the same offense set aside under this section if the offense is punishable by more than 10 years imprisonment.

2020 PA 191 (HB 4984), amending MCL 780.621, effective April 11, 2021.

Some Traffic Offenses May Now Be Expunged Through the
Traditional Application Process (Non-Automatic)

Public Act 187 creates MCL 780.621c, retaining most of the earlier restrictions on convictions that could not be set aside, but now allowing traffic offenses to be set aside with the following exceptions:

Ineligible offenses
  • Operating while intoxicated
  • Traffic offenses causing death or injury
  • Traffic offenses involving operation of a commercial vehicle (or a commercial vehicle violation)

2020 PA 187 (HB 4981), creating MCL 780.621c, effective April 11, 2021.

New Waiting Periods for Traditional Application Process (Non-Automatic)

Public Act 190 creates MCL 780.621d, which sets forth new waiting periods before the filing of a traditional application (non-automatic).  The waiting periods are:

  • Seven (7) or more years, if moving to set aside more than one felony conviction
  • Five (5) or more years, if moving to set aside one felony conviction or one or more serious misdemeanor convictions
  • Three (3) or more years, if moving to set aside one or more non-serious misdemeanors
The time runs from the latest of the following dates:  (1) imposition of sentence; (2) completion of imprisonment; (3) completion of probation; or (4) discharge from parole.  Note discharge from parole is not an available date when seeking to set aside a non-serious misdemeanor because prison would not be an available sentence for a non-serious misdemeanor.

There remains no waiting period for certain convictions related to human trafficking.

Marijuana set-asides also have no waiting period, although the section authorizing these set asides is not effective until April 11, 2021. See summary of marijuana set-asides below.

2020 PA 190 (HB 4983), creating MCL 780.621d, effective April 11, 2021.

Same Transaction Offenses Counted As One For Traditional Application Process (Non-Automatic)

Public Act 188 creates MCL 780.621b, which sets forth a “same transaction” rule for contemporaneous criminal offenses that arise out of the same transaction and occur within 24 hours. In this setting, multiple felony convictions will be treated as one felony and multiple misdemeanor convictions will be treated as one misdemeanor. Ineligible offenses include:
  • An assaultive crime
  • A crime involving use or possession of a dangerous weapon
  • A crime with a maximum penalty of ten or more years’ imprisonment 
  • A conviction from another state that would be considered an assaultive crime in Michigan
The same transaction rule applies to traditional (non-automatic) expungements and those under the special marijuana provisions of MCL 780.621e.

2020 PA 188 (HB 4985), creating MCL 780.621b, effective April 11, 2021.

Special Rules for Marijuana Set-Asides

Public Act 192 creates MCL 780.621e, which addresses the setting aside of one or more misdemeanor marijuana convictions.  Misdemeanor marijuana convictions are defined to include the following:

  • Possession of marijuana under MCL 333.7403(2)(d)
  • Use of marijuana under MCL 333.7404(2)(d)
  • Marijuana paraphernalia under MCL 333.7543
  • A local ordinance substantially corresponding to the above crimes
Section 780.621e does not provide a waiting period, and none of the waiting periods mentioned in MCL 780.621d apply to 621e set asides. To the contrary, section 621e specifies that “[b]eginning on January 1, 2020,” a person convicted of an eligible misdemeanor marijuana offense can move to set it aside.  Note, however, that the effective date of this section is April 11, 2021. In other words, the marijuana set aside process is not available until April 11, 2021.

Once an application is filed under 621e, a rebuttable presumption arises that the conviction would not have been a crime if committed on or after December 6, 2018 (the date recreational marijuana became lawful). The prosecuting attorney has 60 days to file an answer rebutting the presumption under a preponderance of the evidence standard. If such an answer is filed, the court must set a hearing within 30 days. If no answer is filed, the court must enter an order setting aside the conviction within 21 days.

In addition, Public Act 189 creates MCL 780.621f, which also addresses misdemeanor marijuana convictions.  Section 621f provides:

  • A defendant may not seek resentencing for a prior conviction where the misdemeanor marijuana conviction that is now set aside was used to determine the appropriate sentence and/or the scoring of the sentencing guidelines for the previous conviction
  • The losing party to a misdemeanor marijuana application may file for rehearing, reconsideration, or appeal
  • A successful applicant is not entitled to a return of fines, costs, fees, or forfeited property/money

2020 PA 192 (HB 4982), creating MCL 780.621e and 2020 PA 189 (HB 5120), creating MCL 780.621f, both effective April 11, 2021.

Automatic Set-Aside Provisions

Beginning April 11, 2023, or later (depending on technical problems and necessary appropriations), Michigan will have an automatic system for setting aside certain misdemeanor and low-level felony convictions.

The automatic system is different from the traditional application process in that 1) the automatic system requires no application or court hearing, 2) the time frames are longer (i.e., a longer wait time for automatic set-asides), (3) a smaller number of convictions may be set aside, and 4) the automatic process is unavailable for certain crimes (crimes that might nevertheless be set aside under the traditional application process) including serious misdemeanors and also felony convictions with a maximum penalty of 10 years or more.

Generally speaking, under the automatic system, a defendant may have an unlimited number of misdemeanor convictions set aside with a maximum penalty of 92 days or less, but a defendant may have only four misdemeanors set aside with a maximum penalty of 93 days or more, and may have only two felony convictions set aside. These limitations apply during the individual’s lifetime. Within these boundaries, and subject to offense-eligibility rules described below, the system will automatically set aside convictions as follows:

  • Seven years after the imposition of sentence for a misdemeanor punishable by 92 days or less (whether recorded and maintained in the Michigan State Police database or not)
  • Seven years after the imposition of sentence for a misdemeanor punishable by 93 days or more that is recorded and maintained in the Michigan State Police database
  • Ten years after the imposition of sentence or completion of any term of imprisonment in the Department of Corrections for a felony offense that is recorded and maintained in the Michigan State Police database

The automatic system is not available for misdemeanors punishable by 93 days or more and also felony convictions if the conviction is one of the following:

  • An assaultive crime (or attempt)
  • A serious misdemeanor (or attempt)
  • A crime of dishonesty (or attempt)
  • Any offense punishable by 10 years or more imprisonment (or attempt)
  • A crime that has an element that involves a minor, vulnerable adult, injury or serious impediment, or death.
  • Any violation related to human trafficking.

The automatic system is also unavailable for misdemeanor convictions that are punishable by 93 days or more and for felony convictions, if the individual has more than one assaultive conviction (or attempt to commit an assaultive crime) that is recorded and maintained in the Michigan State Police database.

Finally, the automatic system is unavailable for any conviction deemed ineligible through the traditional application process.

A conviction that is automatically set aside may be reinstated as follows:

  • The conviction was improperly or erroneously set aside (ineligible offense), or
  • On motion of a victim or the court, the defendant has failed to make a good faith effort to pay restitution

2020 PA 193 (HB 4980), creating MCL 780.621g and 621h, effective April 11, 2023 or later.

An Important Note about Setting Aside Multiple Convictions

All of the summaries above were created before an alert ICLE commentator noted a looming problem for individuals moving to set aside multiple convictions under the new expungement provisions that take effect in April 2021 or later. For both the traditional application process under MCL 780.621 and the new automatic provisions of MCL 780.621g (although not the new marijuana provisions of MCL 780.621e) there are prescribed wait periods. The problematic language is that an individual may have no new conviction during the wait period: “The applicant has not been convicted of any criminal offense during the applicable time period . . . .”  MCL 780.621d(4) (2020 PA 190; HB 4983). “The applicant has not been convicted of any criminal offense that is recorded and maintained in the department of state police database during the applicable time period . . . .”  MCL 780.621g(6)(c) (2020 PA 193; HB 4980)  This language does not exist under the current version of MCL 780.621.

On its face, the requirement of a crime-free period hardly sounds objectionable.  In practice, this restriction may preclude or severely restrict an individual’s ability to set aside multiple convictions. The wait periods for the traditional application process are scheduled to become:  “7 or more years,” “5 or more years,” and “3 or more years” (emphasis supplied) after the date of sentence or completion of sentence, depending on the nature of the prior conviction.  The automatic process similarly provides for a wait period of seven years (“7 years have passed) for misdemeanors and ten years (“[t]en years have passed”) for felonies. Moving to set aside multiple convictions may prove problematic if a court interprets the wait periods as on-going and concludes that the legislation precludes a set aside whenever the applicant has a new (i.e., subsequent) conviction during the wait period.

Consider this scenario: An individual files a traditional application to set aside two felony convictions, one from 2000 and the other from 2001, as well as a non-serious misdemeanor conviction from 2004. Assuming the individual satisfies the applicable wait periods (seven years or more for the two felonies and three or more years for a non-serious misdemeanor), and assuming the convictions are eligible convictions, the individual would appear to meet the basic requirements of the Clean Slate legislation. Unfortunately, the individual may be considered ineligible to expunge the felony convictions because the misdemeanor conviction occurred during the wait periods for the felony convictions.

If a court reads the language “not been convicted of any criminal offense during the applicable time period” in a vacuum and without reference to other parts of the Act, it could undo much of what the new legislation seems to promise:  the opportunity to set aside up to three felony convictions and an unlimited number of misdemeanor convictions. The only conceivable way to set aside multiple convictions under the new legislation would be if the convictions arose out of the same transaction or the convictions were entered at the same time and the offender had no subsequent convictions. There is a new same-transaction rule under MCL 780.621b, where multiple felony convictions will be treated as a single felony if committed during the same transaction and within 24 hours (with some exceptions).  Likewise, if the multiple convictions were entered on the same day (even if the offenses occurred on different dates), there would be no problem with subsequent convictions.  Other than these two scenarios, it is difficult to imagine how an individual would qualify to set aside two or three felony convictions, let alone multiple misdemeanor convictions, if the convictions occurred one after the other and during one or more wait periods.*

Of course, a court may look to the statutory scheme as a whole and conclude that the new wait periods do not begin to run until the date of the last conviction of record.  With that interpretation, the seven-year period to set aside two or more felony convictions with a traditional application would begin to run from the date of the last conviction.  Similarly, the three-year wait period for a non-serious misdemeanor would begin to run from the date of the last conviction.  These wait periods would presumably run at the same time, although again this depends on how the court interprets the new legislation.
 
Some believe the problem of setting aside multiple convictions can be overcome in another way:  by first setting aside the last conviction and then moving backward one conviction at a time. This approach may prove contrary to newly created MCL 780.623(2), which provides that a nonpublic record of the expunged conviction may be used “[t]o show that a person who has set aside a conviction has previously had a conviction set aside under this act.” If this new language is not considered a barrier, the process of setting aside multiple convictions through multiple applications may present unnecessary delay and duplication of resources, at least where multiple convictions could have been set aside by a single trial judge in a single proceeding.

Guidance may be needed from the courts or the legislature may need to act.  In the meantime, attorneys should be cognizant of problematic language in the new legislation and should consider whether a traditional application, one filed and decided before April 11, 2021, might prove a better vehicle for the client who has no more than one felony conviction and two misdemeanor convictions.

by Anne Yantus
Pro Bono Counsel
Bodman PLC

Anne Yantus is a retired SADO assistant defender and now pro bono counsel for Bodman PLC.


Endnote

* Oddly enough, an individual who commits a new crime while on parole or probation would not face the same hurdles because the new crime would have been committed before the wait period begins with reference to the former conviction. It seems unlikely the legislature would have carved out exceptions for crimes committed while on probation and parole, however.

This article was originally published in SADO's Criminal Defense Newsletter, Volume 44, Issues 1 & 2. Subscribers can access all past Volumes of the CDN here.