Kevin
Welcome back to the Kelly & Kelly law podcast. I’m Kevin from Borealis Digital Marketing, and I’m joined once again by criminal defense attorney Mike Kelly, head of the Criminal Defense Department at Kelly & Kelly P. C.,
How are you doing, Mike?
Mike Kelly
Good, Kevin. How are we doing today, everybody?
Kevin
Doing well, doing well. Thanks for making time here and joining us. Today, we’re going to dive into a crucial topic that offers a second chance to some people in Michigan. We’re going to cut through the confusion surrounding expungement in Michigan, particularly the “clean slate laws”. So let’s stop start here. Let’s define “clean slate”. Can you tell us a little bit about expungement in Michigan, Mike?
Mike
Yeah, so the new law, the Michigan Cleans law expands eligibility for expungements for up to three felonies and really an unlimited number of misdemeanors. So misdemeanors are anything that’s punishable by 90, 93 (days) or up to a year. And sometimes rarely we see a two year misdemeanor. Felonies would be something that’s punishable by more than a year in jail. And that is noted separately as a felony offense. So most importantly, with the clean slate legislation was the introduction of an automatic process for expungement, meaning that’s something that you and I don’t even have to initiate. You could say something, “Hey, I have this thing on my record from from say 88′ and you know, is it still going to be on there?”
Well, for certain qualifying offenses, the state of Michigan is taken upon itself to automatically expunge those eligible offenses from your public criminal history report without a request or an application or a petition being filed requesting for that conviction to be expunged.
Kevin
Interesting. So with with automatic, you don’t have to even file an application. It seems like there’s automatic, versus application based expungements.
Mike
Exactly. So then what we’re really going to be focusing on what you really need a lawyer for is to make that eligibility determination. Have they just not gotten to my charge yet? Are they going to get to my charge? Is it the type of thing that qualifies for an automatic expungement? Do I even need a higher lawyer if that’s the case versus is this something that I need to have a procedure and process completed before that will take place and have that record removed from my background history? And that’s that’s a really tough question that that’s hard for people to necessarily answer on their own because the big legal answer is “it depends” for automatic expungements. It’s for a specific lower level, non-assault, of offenses after a period of seven to ten years. Application is needed for more serious and complex cases or if you wanted the expungement, even if it perhaps would be something that could eventually qualify for an automatic expungent or was in the process of being automatically expunged. If you wanted to move up that timeline, that would be another issue that you could consult a lawyer on and have them initiate the process rather than just waiting for it to begin on its own.
Kevin
So it’s almost like it can be expedited. I mean I’m not I’m not sure if there’s just a stack of papers that the government’s going through. It’s like okay “this one’s eligible, if this one’s eligible”. I don’t know what their process is.
Mike
And it certainly doesn’t hurt to have somebody who knows what they’re looking for, advise you on what the status of your expungement could be. And they’ll be able to kind of tell you based on the experience. For me for example, I have so many other clients that I’m currently actively already representing. I can tell you how long it’s taking presently for their applications to be granted or how another similarly situated client how long their application is taken, or if it was an automatic expungement, how long they they could expect it before they hear a response.
Kevin
That’s a good point and so the big question, you did mention some different limits how many and how long. So my understanding I could be wrong on this it’s up to three felonies and misdemeanors, but it also depends on the category of crime too.
Mike
Right so for felonies, we’re talking about up to three, and this can vary because there’s something we’re going to talk about next, the “One Bad Night” exception. They can say hey if multiple things were from the same instance the same occurrence the same bad night that wouldn’t necessarily count as three separate types of things if they all happened in uniform with each other. But then otherwise we have an unlimited number of misdemeanors, and these are still qualifying offenses. They just have different waiting periods, something like a DUI, has a five-year waiting period, as opposed to maybe something less serious, or something more serious it could be a longer period, and that clock that you’re looking at is important.
It’s from either the date of conviction, which would be the adjudicating event, which is a fancy way of saying the date you either said “I’m guilty”, or the date a judge said “I find you guilty” or a jury, OR the date you completed your probation, whichever is the later event.
Kevin
Okay yeah I think that’s an important point and now I know that there’s like we said there’s some ineligible offenses. I’m assuming like murder or something like that what are some of the that cannot be expunged?
Mike
Yeah I mean it’s unfortunate, but there are certainly a category of offenses that just are not eligible for this expungement. Certain offenses involving children, child abuse, trafficking of women or children, speaking of traffic offenses. Although we talked about DUI’s being expungement if that DUI also resulted in an injury, or death, or a serious impairment of bodily function, that would not be something that’s eligible. Other offenses that would be ineligible, or anything that’s punishable by up to life in prison, and generally, most sex-based offenses, most, not all, but most, are generally not eligible and as a rule of thumb when it comes to assaultive offenses, generally no more than two assaultive convictions can be expunged.
Kevin
That’s an important point and you touched on the “One Bad Night” rule. Can you expand on that a little bit?
Mike
Well it’s a huge it’s a huge benefit for some people like I said in that example of what’s the number of offenses that you can have expunged, when you’re talking about a certain number of felonies being three what if I was received you know more than one felony conviction from the same offense. You know what if it was not only a drug charge, and a distribution of that drug charge, but then also that I had a firearm in my possession too, and they got me with all three, but yet I have this other separate felony from years before that that I’d also like to have expunged. Am I still eligible, because it looks like I have let’s say four offenses well if if more than one of those felony offenses occurred on the same incident the same night, per se, that it wouldn’t preclude the person from seeking the expungement. There might be a little bit of connection that your lawyer has to do and prove to provide the dates there’s case tracking numbers that are assigned for every incident, every offense to make sure those numbers go back so you can say “Hey here’s the proof that these all came from the same bad night, and they’re not separate felonies where you might blindly assume hey it says four felonies that makes them ineligible right?” Not so much.
Kevin
And all right with all these rules and caveats, how can an expungement attorney at Kelly & Kelly help?
Mike
Well we talked about determining eligibility, making sure that if you have something you’re just didn’t see an operating record is it the type that can be automatically expunged, is there nothing for you to do? Or is it something that you can either move that timeline ahead or that you need to take specific action to begin that process. Tracking down records is important too, I was just talking to my my assistant about a case we have where we have to find out-of-state records and just to compare if any out-of-state convictions might upset the waiting period for having that conviction expunged in Michigan. It’s not so easy to know which which court to contact, who to contact, what exactly the record, whether it’s a judgment of sentence, or a record of conviction, or a register of actions. These are legal words that I’m familiar with, that a court may be familiar with, but maybe a common person every day person isn’t exactly sure how to go about and make these requests. And then completing these applications, I mean these are ‘legal applications’, that if you check the wrong box or put the wrong thing, they may bounce your application and not even tell you “hey you forgot to put this”, or “you forgot to include this”, and you could be sitting in limbo thinking that hey it’s taking a long time in that waiting period as I said handling these all the time, I’m familiar with how long it typically takes to get a response. And for initiating these cases, getting your fingerprints done, providing proof from the court, getting that sent up to the state police, getting a response from the state police, corresponding with the attorney general’s office, notifying the court where the case was out of, filing a proper notice of hearing, notifying the prosecutor in that area, preparing for the hearing, attending the hearing, and then if you are successful, making sure the order is properly served on the state police so that expungement is truly cleared, and that record is removed from your record, from your past.
These are all very complicated things and just for peace of mind, it would help if you have somebody who’s experienced in handling these things knowing that they’re going to take away take all the guesswork out of this and do things properly the first time that you need them done.
Kevin
Absolutely that’s important. All right, well thank you Mike thank you for shining light on this complicated and ever-evolving topic ‘expungement in Michigan’
Mike
Absolutely happy to help and as always, call Kelly!
Kevin
Thanks Mike
