Kevin
Welcome back to the Kelly & Kelly Law Podcast. I’m Kevin with Borealis Digital Marketing. Once again, joined by attorney Mike Kelly, the head of the Criminal Defense Department at Kelly & Kelly P.C. Thanks for making time again, Mike.
Mike Kelly
Absolutely, good to see everybody again, and good to be on. Looking forward to sharing some more information.
Kevin
Likewise. In our last episode, we talked about school offenses and how situations can escalate. Today, we can talk a little about what happens after the situation and juvenile records and what are the consequences and if they follow a child into adulthood. So we’ll start off by, let’s just give a broad overview of a juvenile record in Michigan. I’ll let you go with your expertise, Mike.
Mike
Yeah, so when we’re talking about juvenile offenses, we’re talking about two different categories of offenses. 1: Is pretty much anything that if committed by an adult would be a crime that, if committed by a juvenile, is also a crime, meaning that if they were a crime for an adult to engage in an assault and battery, it’s a crime for a juvenile to engage in an assault and battery, even though they’re different of age, they’re still punishable under the law in Michigan, albeit different laws for juveniles from those that are designed for adults. So anything that if it was a crime committed by an adult can also be a juvenile offense if committed by a juvenile.
The other category are certain offenses called “status offenses”. Those are specific offenses that cannot be committed by an adult. These are only things that could be committed by a juvenile, like truancy, encouragability, curfew violations, things that are specifically designed to the underage individual.
Kevin
Smoking and vaping, I imagine, too.
Mike
Those would also be types of juvenile specific offenses. The interesting part on those, you’re talking about how is the charge going to be prosecuted in terms of a juvenile court or a district court, certain offenses like the vaping or the underage drinking, a first offense may only be a civil infraction still. Those might be something a ticket that you could simply pay at the local district court. As opposed to a ticket that’s submitted to the juvenile court, that would be a more formal handling of the offender. And I think it would be very case specific as to whether or not a traffic ticket or a civil infraction like ticket for a first offense underage drinking or a first offense possession of tobacco gets handled by simply payment of a ticket or being referred to like juvenile probation.
Kevin
Unless it’s Oakland County, then life in prison, right?
Mike
Well, sure, right? And they send out the whole Cowboys office after you.
Kevin
On that note, who can see a juvenile record? I mean, does this follow you to college? What would this do for you career wise?
Mike
Well, it depends on how the juvenile record is handled, really. If you have a juvenile case that comes into the juvenile court, there are a couple of different ways the case is gonna be handled. One could be, it could be simply warned and dismissed. It can be turned away at the door, say something like a curfew violation. Mom and dad got a good handle on this. It’s not likely to happen again. The kids never been in trouble before. We don’t need to handle this anymore formally. Or there could be something known as a consent calendar. Put the juvenile on a probationary period. If things are supposed to complete the case dismissed, there’s no formal adjudication, no formal record for the juvenile. But under the formal calendar where the juvenile is placed on probation or placed in a delinquency program and does not have the benefit of bargaining for a dismissal of the offense. And in fact, does receive what they call a “formal adjudication”, which is like the stamping on the record. You got a record. That’s the type of offense that we’re gonna be concerned with when we’re talking about expungement. So who can see that record? We’d only be referring to records that were actually adjudicated, moving contacts that were actually firmly stamped on a juvenile’s record. Back in the day, yeah, it used to be an actual stamp. Now it’s a digit, obviously it’s recorded digitally. These are things that are reported to the Law Information Network, the Michigan Criminal Justice Information System that’s maintained by the Michigan State Police and the FBI database that tracks any fingerprints that are done.
For certain offenses, those that are punishable by 93 days or more, you may be required to be fingerprinted for the collection of biometric data. When you get fingerprinted, that system, that record follows you. And therefore, if your record is not expunged or dismissed or resolved, it’s some earlier phase in the court process and you are adjudicated, stamped, say, yes, this person is guilty, so to speak, of this offense, then that finding of responsibility is something that gets shared to outside agencies. In this case, who’s looking? If it’s law enforcement, yeah, they’re gonna be able to see that you have a juvenile record. If it’s courts, yeah, they’re gonna see that you have a prior juvenile record. Military, yeah, they’re gonna see that you have a prior juvenile record. Licensing boards depends on what type of search they do. If you’re performing a search that’s involving fingerprints, then it’s more likely than not that they’re gonna be comparing those fingerprints to any information that might be out there on a database. And these could be the types of things that would come up under specific offenses that were committed, albeit by juveniles, that are still found to be on the publicly available record.
Kevin
That’s great information to know about the fingerprinting and the difference of if the fingerprint is entered or not. It seems like getting an attorney involved early before it comes to that, if that’s avoidable, would be ideal.
Mike
I mean, certainly a lot of information with it, Kevin, and I could speak a lot further about what that all means, but what we need to be kind of confined to for purposes of this podcast, this subject, we’re talking about records that were stamped, findings of adjudication that were made, because we wouldn’t be concerned about removing anything if we didn’t know there was something already on there.
Kevin
Sure, that’s fair. And on that note, the requirements for in expungement, me, when I watch “Law & Order,” I hear about a record being ‘sealed’. So is there a difference between a record being sealed, and just altogether expunged or wiped out?
Mike
Well, so juvenile records are pretty much all are sealed, unless somehow it’s specifically designated as an adult proceeding to make public. These are non-public records. I mean, there’s no way that you are a general member of the public without being somebody who is legally connected to the individual as a guardian or a legal representative can go online or use some other publicly available website search to find information concerning a juvenile’s case. So the juvenile records in their very nature are sealed. It just comes down to, if those specific agencies are looking for it, if you’re applying to a law school or for law enforcement or military, and they’re saying, “Hey, have you ever been convicted of an offense as an adult and or adjudicated of an offense as a juvenile?” And you’re saying, “Crap, well, yeah, I did have that thing as a juvenile. I’m not sure what that, I think I did get adjudicated or convicted of it.” That would be the record that we’re concerned about them locating.
Kevin
Got it.
And in your experience, what are common situations that parents come to you about, whether it’s school fights or minor in possession, what are some of the most common issues in this realm?
Mike
I mean, certainly we’re talking about assault of offenses. We’re talking about substance related offenses. We’re talking about driving offenses, all the likely cast of things that a young person is likely to be involved in, but probably the more concerning and the more pressing concerns are of the sexual nature. If there is either the exchange or the sharing of information via Snapchat, or some other social media or touching or sexual conduct between juveniles or somebody that’s not a juvenile and somebody that is, these are the offenses that we’re gonna get into the area where we’re really gonna be worried about, as the person’s facing this charge, is this the type of thing that’s gonna be an expungible offense in the future? Is this the type of thing that’s gonna have a record associated with it? Most of the minor level offenses, we can affirm, we say, no, these are the types of offenses that we can more assuredly say are gonna stay in that sealed status, are gonna be eligible for quick expungement, a year after the probationary term is completed or after you turn 18. But the other more serious offenses, those criminal sexual conducts in the third degree, those are not eligible for expungement.
Stalking, harassment types of charges, aggravated assault, those are not eligible for expungement. Abuse charges, child abuse, perhaps something involving a sibling or a younger person under their care or that was maybe at grandma and grandpa’s house or cousin’s house too, and that happened by an older cousin or relative. That could be a child abuse charge. That’s not eligible for expungement. So felonious assault, using a dangerous weapon at the time of the assault. I mean, assault that there’s inflicting any aggravated injury, that’s not eligible for expungement. So these are the more serious offenses
that as a parent, you gotta be thinking, is this something that I should be talking to a lawyer about? And the answer to that is yes, absolutely. You don’t know for yourself. This list that I’ve been rattling off is a non-exclusive list. There’s a lot more to it. And you need to know at the earliest opportunity, what can I do to make sure my son or daughter is in the best position for their future?
Kevin
And on that note, how can a juvenile defense attorney at Kelly & Kelly help with expungements?
Mike
Let’s get involved early. You know, let’s make a plan for this at the earliest opportunity. I have cases right now that that’s part of the solution. Putting this charge either through a plea negotiation or discussions with the prosecutor, maybe it starts out and it’s in a category otherwise wouldn’t be eligible for expungement. The time to work out a negotiation, a reduction, or change the charge is before you make any decisions on it. So getting involved early if possible when you can. If something’s already happened and you’re not sure, you know, is this something I’m gonna need an attorney for? Again, remember, unless you have a lawful purpose in contacting the court on behalf of the juvenile, they’re not gonna share any information with you. So either the juvenile is legal guardian or an attorney has to be the one that calls the court and knows what to ask to determine is this a type of offense that needs to be addressed in a more formal process?
And then also eligibility. We hear about automatic expungement versus petitioning. Is this the type of offense if it is eligible for some type of an expungement? What is the process if I have to petition the court? Who do I involve in that? How long is it gonna take? And how do I make sure it’s gonna be done properly? These are all the types of things that an attorney can help you with from information gathering, checking over records from the past, pointing in the right direction, helping you contact the courts or any agencies that might be holding that information. How do you share and disclose that information to an agency that might be asking it, like a school, university, an employer? And again, deciding, you know, is this the type of person that we’re concerned about in terms of law enforcement, military, somebody that might have an automatic clearance to be able to see what’s happening? Or is this more specific? Is this a private employer that really should not be privy at all to a sealed non-public juvenile record?
Kevin
This is absolutely serious stuff. Appreciate you sharing your legal insight on the nuanced topic of juvenile expungements in Michigan, Mike.
Mike
Well, as first, if you’ve got questions, call Kelly.
Kevin
Absolutely. Thanks, Mike.
Mike
All right, thank you all.
