Let’s say you did something colossally stupid when you were eighteen (like urinating in public after a long night of bar hopping or stealing beer from the grocery store where you worked, thinking no one would notice a missing six pack). It’s now twelve years later, you’re thirty years old, married, with two kids and trying to land a better job. Putting all the gory details of your youthful indiscretion on job applications isn’t much fun, and you can’t imagine that it looks good to potential employers. However, you also can’t imagine that it would look better to have the employer do a background check and turn up a conviction you didn’t voluntarily reveal. (It doesn’t. Don’t do it.) What should you do? One option to consider is requesting that your criminal record be expunged or set aside. Expunging a record means that the information of your arrest, conviction and sentence is no longer a part of the public record. Your record “disappears” except in a few very selective State databases where the record has to be kept to make sure you don’t try to expunge things more than once.
Every state has different laws regarding expunging a criminal record, so it is important to consult with an attorney in your area to get an accurate overview of the process. The following are the rules and steps governing expunging criminal records in the State of
Michigan
.
In order to expunge your record in
Michigan
(technically called “setting aside” your conviction), you must have been convicted of only ONE offense. This means you can only have ONE “youthful indiscretion” on your record. Furthermore, the offense of which you were convicted cannot be a felony for the which the maximum sentence is life in prison; cannot be an attempt to commit a felony for which the maximum sentence is life in prison; cannot be a sexual assault or an attempted sexual assault and cannot be a traffic offense, including impaired driving or operating under the influence of liquor.
If your conviction does not fall into any of these ineligible categories, the next hurdle is that the appropriate amount of time must have passed between your conviction and your request for the conviction to be set aside. The minimum amount of time that can have passed in
Michigan
is five years if you were not imprisoned for your offense. (That date is calculated from the date of your conviction, not from the date of your arrest or the date when you were charged.) If you were imprisoned for your offense, the date you can apply is five years from the date of your release.
If it has been five years since your conviction and the crime for which you were convicted is eligible, you will need to file an Application to Set Aside Conviction with the Court in which you were convicted. Because the Application must be accompanied by a certified record of your conviction, however, you will need to contact the Court where you were convicted in advance of filing your Application. You will need to talk to the Criminal division of the Court and find out the exact date of your conviction. You will also need to request that the Court send you a certified copy of your judgment of sentence, probation order, or register of actions. The Court will charge a nominal fee for providing this certified document, usually about $10.00.
Because your criminal record will be investigated before the Court can expunge a record, you will also need to provide the Court with two sets of your fingerprints. During the period in which you are contacting the Court and getting your documents around, you should visit your local police department and ask to be fingerprinted. Most police departments are familiar with the process for setting aside a criminal conviction and will happily assist you in getting fingerprinted. If your local agency is not familiar with the process, you will need to explain that you will be submitting the fingerprints to the Michigan State Police for an investigation as part of your Application to the Court. Make sure that the police take TWO separate sets of prints on TWO fingerprint cards.
Once you have obtained the certified record of your conviction you can fill out the Application. The Application is Michigan Court Form 227 and is available online from the State Court Administrator’s Office as a .pdf file. The form is found at: http://courts.mi.gov/scao/courtforms/generalcriminal/mc227.pdf.
You must make sure that you have filled out the application completely and correctly. Under Michigan law, the Application must contain the following items: 1) the full name and current address of the applicant; 2) a statement that the applicant has not been convicted of an offense other than the one sought to be set aside; 3) a statement as to whether the applicant has previously filed any motions to expunge (this or any other conviction) and the disposition of any such motions; 4) A statement as to whether the applicant has any other pending criminal charges in any court in the US or another country; and 5) a consent to the nonpublic record created under a prior expunged conviction or investigation under MCL 780.623. Once you have filled the application out, you will need to swear to the truth of its contents in front of a Notary Public.
You will then need to take the Application to the Court to file it. Be sure that you have the original signed Application and FIVE copies. The Court will schedule a hearing date (usually a few months out in order to give the State Police time to investigate your record) and will give you back the five copies with the hearing date filled in. You will need to send one copy to the Prosecutor for the County in which you were convicted and one copy to the Attorney General of the State of
Michigan
. (The Attorney General’s address is listed on the Instructions page of the Application and you can obtain the Prosecutor’s address from the Court.) You will also need to send a copy of the Application to the Michigan State Police along with your fingerprint cards and a check for $25.00 made payable to the State of
Michigan
. (The address for the State Police is also on the Instructions page.)
Once you have mailed your copies to the Prosecutor, Attorney General and State Police, you will need to provide the Court with proof that you mailed the copies. One copy of the Application is for that purpose. At the bottom of the Application there is a section titled “Proof of Service” with blanks for you to insert the date you mailed copies to the Prosecutor, Attorney General and Michigan State Police. Fill in the correct date(s) on which you mailed the copies, date and sign the copy, and return it to the Court. This is the final step necessary before the hearing.
Keep your copy of the Application in a safe place and make sure that you take time off work to attend the hearing. On the day of the hearing, plan on arriving at the Courthouse at least 20 minutes early. You should wear clean, business clothes and look as well put together as possible. I always tell clients to dress as if they were going to church. When your case is called, answer any questions the Judge asks you as honestly and completely as possible.
The setting aside of the conviction is a privilege and NOT a right. The Court can consider your circumstances and behavior from the date of the conviction to the present when making the determination of whether your record should be expunged. Your conviction can be set aside only if such is consistent with the public welfare.
Even if you meet all the technical qualifications for expunging your conviction, actually doing so is within the discretion of the Judge. Therefore, be as polite as possible. Never wear a hat in a Courtroom or chew gum in a Courtroom, as both are signs of disrespect.
If the Judge grants your Application, he will prepare an Order setting aside your conviction. Your conviction will be taken out of LEIN and will no longer be a matter of public record. Once a conviction has been expunged, you no longer have to list it on job applications.
In order to make sure that all the steps outlined above are completed correctly and to insure that the law regarding the setting aside of convictions in the state of
Michigan
has not changed, you should consult with an attorney. This article is intended to provide a current overview of the current process only, and should not be considered legal advice.
