Can a Felony Be Expunged in Michigan?

Many Michigan felonies can be set aside, though the statute calls it that rather than expungement. Most people must apply to the convicting court after waiting five years for one felony or seven for more than one. Some offenses are excluded, and some older felonies are set aside automatically after ten years. MCL 780.621 et seq.

What a set-aside does and does not do

The Clean Slate package, 2020 PA 187 to 193, rewrote the act at MCL 780.621 to 780.624, and later amendments followed. When a conviction is set aside, you are considered not to have been previously convicted for purposes of the law, with exceptions. MCL 780.622(1). The conviction does not vanish. The State Police keep a nonpublic record that courts, prosecutors, law enforcement and certain agencies can use for listed purposes, including charging, plea offers and sentencing. MCL 780.623(2). A set-aside conviction can still count as a prior for charging a second or subsequent offense. MCL 780.622(9). You do not get fines or costs back, restitution is still owed, and a listed sex offense still counts for registration. MCL 780.622(2), (3), (7).

Who can apply

A person with not more than three felony convictions in total in Michigan may apply to have all of the applicant’s Michigan convictions set aside. MCL 780.621(1)(a). Two further limits apply: no more than two assaultive crime convictions over a lifetime, and no more than one felony conviction for the same offense if that offense is punishable by more than 10 years. MCL 780.621(1)(b), (c). Felonies from one incident count as a single conviction if they occurred within 24 hours, arose from the same transaction, and none is an assaultive crime, a dangerous-weapon crime or a crime with a maximum of 10 or more years. MCL 780.621b(1). A felony that was deferred and dismissed is counted as a misdemeanor for this tally. MCL 780.621(2).

The waiting periods

MCL 780.621d sets the clock. An application to set aside one felony conviction may be filed five or more years after the last of these events: sentencing, completion of probation, discharge from parole, or completion of any term of imprisonment. To set aside more than one felony conviction, the wait is seven years from the same events. MCL 780.621d(1), (2). Five years also applies to a serious misdemeanor or one first-offense OWI, and three years to most other misdemeanors. MCL 780.621d(2), (3).

The court cannot grant the application unless the period has run, no charges are pending, and you have not been convicted of any offense during the period. MCL 780.621d(4). If a petition is denied, you cannot file again on the same conviction for three years unless the order sets an earlier date. MCL 780.621d(5).

Convictions that cannot be set aside

Under MCL 780.621c(1), a judge cannot set aside a felony punishable by life imprisonment or an attempt at one; the offenses listed in subdivision (b), which include several criminal sexual conduct and child abuse offenses; fourth-degree criminal sexual conduct convictions entered on or after January 12, 2015; operating while intoxicated, except one first-offense OWI; any traffic offense that causes injury or death; a felony domestic violence conviction where you have a prior misdemeanor domestic violence conviction; and human trafficking offenses and a few others. A first OWI can be set aside only once, and the court may consider whether you completed rehabilitative or educational programming. MCL 780.621c(3), (4). An order setting aside a traffic offense does not remove it from your Secretary of State driving record. MCL 780.621c(5). For how OWI charges are graded, see Michigan drunk driving laws.

Automatic set-asides

Some convictions are set aside without an application. For a felony, MCL 780.621g(2) requires ten years from the later of sentencing or completion of a Department of Corrections prison term, and the conviction must otherwise be eligible under section 1. The automatic route is capped at two felonies and four misdemeanors over a lifetime, with an exception for the shortest misdemeanors. MCL 780.621g(5). For felonies and misdemeanors punishable by 93 days or more, it does not reach assaultive crimes, serious misdemeanors, crimes of dishonesty, offenses punishable by 10 or more years, and several other categories, and a person with more than one assaultive conviction is excluded from those routes. MCL 780.621g(7), (10). The statute tied the process to appropriation, and the Michigan Attorney General’s press release of April 11, 2023 states that the State Police were launching the automatic program that day.

How the application works

The application goes to the convicting court. It must be signed under oath and include your name and address, a certified record of each conviction, a statement that you have not been convicted of an offense during the waiting period, any deferred-and-dismissed cases, any earlier application, and any pending charges. MCL 780.621d(7). A copy and fingerprints go to the State Police with a $50 fee, and the court cannot act until the State Police report. MCL 780.621d(8), (9). The Attorney General and the prosecutor must be served and may contest it. For an assaultive crime or serious misdemeanor the victim is notified and may appear. MCL 780.621d(10).

The court may require affidavits and proofs. It may grant the application if your circumstances and behavior since the conviction warrant it and a set-aside is consistent with the public welfare. MCL 780.621d(11), (13). The statute calls a set-aside a privilege and conditional, not a right. MCL 780.621d(14).

What I check first

I count the felonies and look for the same-night rule, then match each conviction against the exclusion list. Then I find the date the clock started, which is the last of sentencing, probation, parole or prison, and not always the sentencing date. I also check whether an automatic set-aside may already apply. The act has been amended several times since 2021, so check the current text before relying on any summary, including this one. My approach to criminal cases is on my Grand Rapids criminal defense lawyer page.

If you want to know whether a conviction can be set aside, call my Grand Rapids office at (616) 213-3327 or use the contact page. This post is general information, not legal advice, and reading it does not make me your lawyer.