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Expungements are Now Possible for Non-Public Criminal Records

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Richard L. Hillman
April 15, 2016

In 2015 the Michigan legislature made changes to MCL 780.621 that broaden a court's discretion to set aside both felony and misdemeanor criminal records, including non-public records. 

The statute expanded the definition of 'conviction' to include non-public criminal records that were entered under special statutes such as the Michigan liquor code (minor in possession offenses under MCL 436.1703); offenses deferred under the Holmes youthful trainee act (MCL 600.1070); first offense domestic violence offenses (MCL 769.4a); controlled substances offenses (MCL 333.7411); parental kidnapping (MCL 750.350a); or any similar law that provides for deferral and dismissal of a felony or misdemeanor charge. MCL 780.621(2).

Each of the above statutes allows an offender to avoid receiving a public record for an offense if the person successfully completes a term of probation. However, though no public record is kept for the offense, a non-public record is maintained by law enforcement, even after the person is discharged from probation and the case is dismissed. In many cases, a non-public record resurfaces when a person is subjected to a background check, particularly when a person is seeking employment by a public entity such as a school or government office. 

If more than five years have passed after the completion of probation, a petition may be filed with the court where the offense occurred, to set aside the 'conviction' in the same manner that a public record may be set aside.

The 2015 amendments also broadened the opportunity for persons with multiple criminal convictions on their records to seek expungements. A person with not more than one felony and not more than two misdemeanors may now seek to have the felony record set aside and a person with not more than two misdemeanors may now seek to have both misdemeanors set aside.  The statute continues to exclude certain offenses from being set aside, including all traffic misdemeanors and felonies.