Expungement / Record Sealing Petition and Eligibility Memo — Michigan

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Expungement / Record Sealing Petition and Eligibility Memo (MICHIGAN)

Quick-Reference Summary

Part A — Eligibility Memo

1. Statutory Framework

Michigan does not use the term "expungement." The statutory remedy is set aside of conviction under MCL § 780.621 et seq., enacted by 1965 PA 213 and substantially restructured by the Clean Slate Act package of 2020 (PA 187 through PA 193), effective April 11, 2021, with the automatic set-aside provisions of § 780.621g effective April 11, 2023.

Michigan now provides two paths:

1. Automatic Set Aside (MCL § 780.621g) — the Michigan State Police, on a rolling daily basis, automatically sets aside eligible convictions in its Criminal History Record (CHR) database. No application, no fee. Courts are notified by daily secure file transfer.
2. Set Aside by Application (MCL § 780.621) — the traditional petition process, filed in the convicting court, for offenses NOT covered by automatic relief.

2. Automatic Set Aside — Eligibility (MCL § 780.621g)

Waiting period runs from:

• For misdemeanors: imposition of sentence;
• For felonies: imposition of sentence OR completion of any term of imprisonment with the Michigan Department of Corrections, whichever occurs later.

Conditions:

• The required time period must have elapsed;
• No pending criminal charges in the MSP CHR;
• No convictions in the MSP CHR during the applicable time period.

3. Automatic Set Aside — Exclusions

Automatic set aside does NOT apply to convictions for:

• Assaultive crimes (as defined in MCL § 770.9a and § 780.621(4)(a) — includes Ch. XI of the penal code, certain assaultive felonies);
• Serious misdemeanors (as defined in MCL § 780.811 of the Crime Victim's Rights Act);
• Crimes of dishonesty (e.g., false pretenses, embezzlement, forgery, uttering and publishing);
• Any offense punishable by 10 or more years imprisonment;
• Offenses under Ch. XVII of the code of criminal procedure (MCL 777.1-777.69) the elements of which involve a minor, vulnerable adult, injury or serious impairment, or death;
• Human-trafficking-related violations;
• Operating While Intoxicated (OWI) by any person — though first-violation OWI may be set aside by application under § 780.621;
• Traffic offenses by a CDL holder operating a commercial motor vehicle or otherwise involving CMV violations;
• Traffic offenses causing injury or death.

4. Set Aside by Application — Eligibility (MCL § 780.621)

A person convicted of one or more criminal offenses, but not more than a total of 3 felony offenses in Michigan, may apply to have all of the applicant's Michigan convictions set aside, subject to:

• Up to 2 assaultive-crime convictions may be set aside in a lifetime;
• Only 1 felony conviction for the SAME OFFENSE may be set aside if the offense is punishable by more than 10 years (e.g., two convictions for delivery of a Schedule 1 controlled substance 50-450 grams — only one may be set aside);
• Unlimited misdemeanors may be set aside;
• A person convicted of a violation of MCL § 750.520e (criminal sexual conduct, fourth degree) before January 12, 2015 may petition under § 780.621(1)(d) if the individual has no more than 2 minor offenses;
• A person convicted of a violation of MCL § 750.448, 750.449, or 750.450 (prostitution) committed as a direct result of being a victim of human trafficking may apply under § 780.621(3) with no waiting period;
• Deferred-and-dismissed dispositions (under MCL § 333.7411 (controlled substances), § 436.1703 (liquor), § 750.350a (parenting time), § 750.430 (frauds), HYTA § 762.13, § 769.4a (domestic-violence diversion), and other specified deferrals) are counted as misdemeanor convictions for set-aside eligibility purposes even if formally dismissed.

5. Waiting Periods — Application (MCL § 780.621d)

The waiting period runs from the latest of:

1. Imposition of sentence;
2. Completion of any term of imprisonment;
3. Completion of probation;
4. Discharge from parole.

Discharge from parole is not applicable when seeking set-aside of a non-serious misdemeanor (because prison would not be an available sentence).

6. The "One Bad Night" Rule (MCL § 780.621b)

Multiple offenses arising from the same transaction within a 24-hour period may be treated as a single conviction for set-aside purposes. The rule does NOT apply where any of the offenses is:

• An assaultive crime;
• A crime involving the use or possession of a dangerous weapon;
• A crime punishable by 10 or more years maximum.

7. Set Aside of Marijuana Misdemeanors (MCL § 780.621e; 2020 PA 188-189)

• Available for misdemeanor marijuana convictions under MCL § 333.7403 (possession) and § 333.7404 (use), and substantially similar municipal ordinances;
• No waiting period;
• Conviction must be one that would NOT have been a crime if committed after December 6, 2018 (when recreational marijuana became legal for adults under MRTMA, MCL § 333.27951 et seq.);
• Rebuttable presumption in favor of set-aside;
• Prosecutor has burden to rebut by showing the offense would still have been a crime under post-2018 law.

8. Categorical Bars (MCL § 780.621c and related)

The following convictions cannot be set aside through either path:

• First-degree felony murder (MCL § 750.316);
• Convictions for which the maximum penalty is life imprisonment or a life-attempt offense;
• Certain child-abuse offenses (MCL § 750.136b — first, second, third degree);
• First- or second-degree criminal sexual conduct (MCL § 750.520b, 750.520c);
• Third-degree CSC;
• Assault with intent to commit CSC (MCL § 750.520g);
• Child sexually abusive activity (MCL § 750.145c);
• Human trafficking offenses (MCL § 750.462a et seq.) where applicant is the perpetrator;
• Treason;
• Domestic violence with two or more prior similar convictions (MCL § 750.81(4));
• OWI causing death or serious injury (MCL § 257.625(4), (5));
• Felony OWI with priors;
• Traffic offenses causing death or injury;
• Commercial-motor-vehicle violations by CDL holder while operating CMV;
• Certain offenses where victim was under 18.

9. Procedure — Application

1. Obtain a certified copy of the judgment of sentence/conviction from the convicting court.
2. Submit a complete set of fingerprints at any Michigan State Police post or local law-enforcement agency that takes prints for set-aside applications.
3. Complete MC 227 — Application to Set Aside Conviction (available from Michigan Courts website).
4. Send to the Michigan State Police with the fingerprint card and $50 fee.
5. File the application with the convicting court.
6. Serve on:
   - Michigan Attorney General;
   - County Prosecuting Attorney of the county of conviction;
   - Arresting agency of record;
   - Victim (if any) under the Crime Victim's Rights Act, MCL § 780.751 et seq.
7. Prosecutor has 60 days to file objection; the Attorney General may also respond.
8. Court holds a hearing; applicant has burden to show eligibility AND that setting aside the conviction is consistent with the public welfare.
9. Court enters Order Setting Aside Conviction (MC 228) if granted.

10. Effect of Set Aside (MCL § 780.623)

Upon set aside, the conviction is deemed not to have occurred for most civil and licensing purposes. However:

• The record is retained in a non-public file maintained by the MSP, accessible to: the governor (for pardon decisions); law-enforcement agencies; prosecutors; courts (for sentencing in any later prosecution and for plea-bargain decisions); MDOC, judicial-branch, and law-enforcement employers; licensing boards (for limited purposes).
• The conviction may be used in any subsequent prosecution as a prior conviction for: charging a new offense as 2d/subsequent offense; habitual-offender sentencing under MCL § 769.10 et seq.; SORA registration where applicable.
• Restitution remains payable; civil liability of applicant to victim is unaffected.
• The applicant retains double-jeopardy protection as to the set-aside conviction.
• The applicant is NOT entitled to refund of fines, costs, assessments, or fees paid.
• For a set-aside misdemeanor marijuana conviction (MCL § 780.620e), the applicant may not seek resentencing of a previous conviction where the marijuana conviction was considered at sentencing.

11. Automatic Relief Schedule

• April 11, 2023 launch: MSP automatically set aside approximately 850,000+ convictions; more than 252,000 individuals ended that day conviction-free.
• Daily rolling: MSP continues to identify newly eligible records and transmit set-aside notifications to courts.
• Applicant should verify automatic relief by obtaining an ICHAT (Internet Criminal History Access Tool) report from the MSP after the applicable waiting period.

12. Subsequent-Conviction Consequences

• A subsequent conviction during the waiting period for an automatic set aside RESTARTS the clock (per § 780.621g).
• A subsequent conviction after set-aside does NOT automatically reopen the set-aside record but the set-aside conviction may be used for habitual-offender enhancement and 2d/subsequent-offense charging.
• The court retains discretion to deny later set-aside applications based on the applicant's full record.

Part B — Petition Template

APPLICATION TO SET ASIDE CONVICTION (MC 227)

NOW COMES Applicant, [APPLICANT FULL LEGAL NAME], by and through [self / undersigned counsel], pursuant to MCL § 780.621 [traditional application] / § 780.621e [marijuana] / § 780.621(3) [human-trafficking victim], and respectfully applies to this Honorable Court for entry of an Order Setting Aside the conviction(s) identified herein. In support, Applicant states:

I. Applicant

1. Full legal name: [________________________________].
2. All other names used: [________________________________].
3. Date of birth: [__/__/____].
4. Race: [____]. Sex: [____].
5. SID (State Identification Number from MSP): [________________________________].
6. FBI Number: [________________________________].
7. Driver's license number / state ID: [________________________________].
8. Current address: [________________________________].
9. Telephone: [________________________________]. Email: [________________________________].

II. Underlying Case(s)

III. Eligibility Statement

10. Applicant avers that the conviction(s) identified are eligible for set aside under the cited statute for the following reason(s) (check applicable):

☐ Traditional Application (§ 780.621): Applicant has [____] total felony convictions (not exceeding 3) and unlimited misdemeanors; has not exceeded 2 assaultive-crime set-asides in a lifetime; has not exceeded 1 set-aside for the same-offense felony punishable by more than 10 years; the applicable waiting period of [3 / 5 / 7] years has elapsed since the latest of imposition of sentence, completion of imprisonment, completion of probation, or discharge from parole.
☐ One Bad Night (§ 780.621b): Two or more convictions arising from the same 24-hour transaction are counted as one because none of them is an assaultive crime, involves a dangerous weapon, or carries a 10-year maximum.
☐ Marijuana Misdemeanor (§ 780.621e): The conviction is for an offense that would not have been a crime if committed after December 6, 2018, under MRTMA. No waiting period.
☐ Human-Trafficking Victim (§ 780.621(3)): The conviction was for an offense under MCL § 750.448, 750.449, or 750.450 (or substantially similar ordinance) committed as a direct result of Applicant being a victim of human trafficking.
☐ First-Violation OWI (§ 780.621): The conviction is the only OWI on Applicant's record; at least 5 years have elapsed; Applicant has completed rehabilitative or educational programming (Exhibit [____]).
☐ Pre-2015 CSC-4 (§ 780.621(1)(d)): Offense committed before January 12, 2015; no more than 2 minor offenses on record.

11. Applicant has no criminal proceedings pending in any jurisdiction in this state or any other.
12. Applicant has not previously had more than the statutory limit of convictions set aside under any provision of MCL § 780.621.
13. The conviction(s) sought to be set aside are NOT within the categorical bars under § 780.621c (e.g., not life-maximum; not CSC-1/2/3; not child sexually abusive activity; not human-trafficking perpetrator; not OWI causing injury/death; not traffic offense causing injury/death; not commercial-vehicle-driver violation).
14. All restitution ordered has been paid in full, or alternative arrangements have been made with the prosecutor and victim.

IV. Grounds — Public Welfare Test

15. Setting aside the conviction(s) is consistent with the public welfare because:
    - Applicant's behavior from date of conviction to date of application has been law-abiding: [________________________________];
    - Time elapsed: [____] years;
    - Employment / educational history: [________________________________];
    - Family responsibilities and community involvement: [________________________________];
    - Treatment, counseling, or rehabilitative programming completed: [________________________________];
    - Reasons set-aside is needed: [employment / housing / professional licensing / military / immigration / restoration of civil rights]: [________________________________];
    - Letters of support attached as Exhibit [____].

16. For first-violation OWI applications, Applicant has benefited from rehabilitative or educational programs as evidenced by [Exhibit ____].

V. Service of Notice (MCL § 780.622)

17. Applicant has caused (or will cause within [____] days) the following to occur:

☐ Submitted complete set of fingerprints to the Michigan State Police with $50 fee
☐ Served the Michigan Attorney General, P.O. Box 30212, Lansing, MI 48909
☐ Served the [COUNTY] County Prosecuting Attorney
☐ Served the arresting agency: [________________________________]
☐ Notified the victim of the offense (where applicable) under MCL § 780.756 / § 780.811
☐ Filed proofs of service with the Clerk

18. The Prosecutor and Attorney General have 60 days to object. If no objection, the Court may grant the Application without hearing.

VI. Requested Relief

WHEREFORE, Applicant respectfully prays that this Court:

A. Find Applicant eligible for set aside of the conviction(s) under MCL § [________];
B. Find that setting aside the conviction(s) is consistent with the public welfare;
C. Enter an Order pursuant to MCL § 780.622 SETTING ASIDE the conviction(s) identified herein;
D. Direct the Clerk of Court, the Michigan State Police, the arresting agency, the Michigan Department of Corrections (if applicable), and the FBI (where applicable) to make the records of the case non-public consistent with MCL § 780.623;
E. Order that Applicant be considered, for purposes of all civil and licensing inquiries (subject to the exceptions in MCL § 780.623), as if the conviction(s) had not occurred; and
F. Grant such other relief as is just and equitable.

Signature and Verification

Respectfully submitted,

VERIFICATION (MCL § 600.2102; MCR 1.109). I, [APPLICANT NAME], being first duly sworn, depose and state that I have read the foregoing Application to Set Aside Conviction, that the facts stated therein are true to my own knowledge, and that the matters stated on information and belief I believe to be true.

___________________________________ (Applicant signature)
Sworn to and subscribed before me this [____] day of [_______________], [____].

___________________________________
Notary Public, State of Michigan
County of [____________]
My commission expires: [__/__/____]

Part C — Filing Checklist

Pre-Filing

☐ Obtain ICHAT (Internet Criminal History Access Tool) report from MSP
☐ Obtain certified judgment of sentence from convicting court
☐ Confirm automatic set-aside status: check ICHAT after applicable waiting period (7 yr misdemeanor / 10 yr felony) before filing application
☐ Confirm waiting period elapsed (count from latest of: sentence imposition, end of imprisonment, end of probation, discharge from parole)
☐ Confirm not exceeding 3 felonies / 2 assaultive crimes / 1 same-offense 10+ yr felony in lifetime set-asides
☐ Confirm offense not categorically barred (CSC-1/2/3; life max; child sexually abusive activity; human trafficking perpetrator; OWI w/ injury/death; commercial-vehicle violation)
☐ Identify whether "one bad night" rule applies to consolidate multiple counts
☐ Confirm all restitution paid
☐ Confirm no pending criminal cases

Application Preparation

☐ Complete MC 227 — Application to Set Aside Conviction
☐ Submit complete fingerprint set at MSP post or law-enforcement agency
☐ Pay $50 fingerprint-processing fee to MSP
☐ Attach certified copies: judgment of sentence; orders of probation discharge / parole discharge / MDOC release
☐ Attach rehabilitation evidence: employment history; education; treatment certifications; letters of support
☐ Notarize verification

Filing

☐ File application with convicting court (Clerk)
☐ Serve copy on Michigan Attorney General (Lansing)
☐ Serve copy on county Prosecuting Attorney
☐ Serve copy on arresting agency
☐ Notify victim under Crime Victim's Rights Act (where applicable)
☐ File proofs of service

Post-Filing

☐ Calendar 60-day prosecutor/AG objection deadline
☐ If no objection, court may grant without hearing
☐ If objection, prepare hearing on public-welfare balancing

Hearing

☐ Present rehabilitation evidence
☐ Respond to prosecutor / AG objection
☐ Respond to victim statement if presented
☐ Submit proposed Order (MC 228)

Post-Order

☐ Serve certified Order Setting Aside Conviction on: MSP; arresting agency; FBI (felony); MDOC (if applicable); judicial branch; AG; Prosecutor; Clerk
☐ Verify MSP CHR updated via ICHAT (allow 60-90 days)
☐ Confirm FBI updated (if applicable)
☐ Advise Applicant of effect: non-public record; conviction retained for limited statutory uses; may be used for habitual-offender / 2d-offense / SORA / pardon purposes
☐ Maintain copy of Order for life (in case verification needed later)

Automatic Relief Verification

☐ For potentially-auto-eligible convictions: re-run ICHAT after 4/11/2023 launch (or after the eligibility date if later) to confirm automatic set-aside occurred
☐ If automatic set-aside not reflected after 90 days from eligibility, contact MSP Clean Slate program

Sources and References

• MCL § 780.621 — Application to set aside a conviction: https://www.legislature.mi.gov/Laws/MCL?objectName=mcl-780-621
• MCL § 780.621g — Automatic set aside (Clean Slate): https://www.legislature.mi.gov/Laws/MCL?objectName=mcl-780-621g
• MCL § 780.621d — Waiting periods (Clean Slate): https://www.legislature.mi.gov/Laws/MCL?objectName=mcl-780-621d
• MCL § 780.621e — Marijuana misdemeanor set aside: https://www.legislature.mi.gov/Laws/MCL?objectName=mcl-780-621e
• MCL § 780.623 — Effect of set aside: https://www.legislature.mi.gov/Laws/MCL?objectName=mcl-780-623
• 2020 Public Acts 187-193 — Clean Slate Package: https://www.legislature.mi.gov/Bills/SearchResults?BillsSearch&pa=2020
• Michigan State Police — Clean Slate / Conviction Set Aside: https://www.michigan.gov/msp/services/chr/conviction-set-aside-public-information/michigan-clean-slate
• MSP ICHAT (Internet Criminal History Access Tool): https://apps.michigan.gov/ICHAT/Home.aspx
• Michigan Courts — MC 227 Application to Set Aside Conviction: https://www.courts.michigan.gov/4a52d1/siteassets/forms/scao-approved/mc227.pdf
• Michigan Legal Help — Expungement (Set Aside) resources: https://michiganlegalhelp.org/resources/crime-and-traffic
• State Appellate Defender Office (SADO) — Clean Slate Legislation overview: https://www.sado.org/articles/Article/839
• Michigan Bar Journal — "Expungements: Setting aside the confusion" (Dec. 2023): https://www.michbar.org/journal/Details/Expungements-Setting-aside-the-confusion?ArticleID=4767