Breaking Down Michigan’s Clean Slate Legislation

On October 12, Michigan Governor Gretchen Whitmer signed a package of bills that have collectively been referred to as the “Clean Slate” legislation. In truth, Michigan’s Clean Slate legislation is a package of 7 separate bills that have dramatically changed the legal landscape in Michigan as it relates to expungements (the removal of arrests and convictions from an individual’s public criminal record; in Michigan, past arrests and convictions remain available to courts and law enforcement even when expunged). These bills are HB 4980, 4981, 4982, 4983, 4984, 4985, and 5120.

It is important to note that the changes enacted by these laws will not take effect until April 10, 2021. The Clean Slate legislation provides that these newly enacted laws do not take effect for 180 days, so if you have an offense that is now eligible for an expungement, you will have to wait until next spring before you are eligible to apply. Moreover, under the Clean Slate legislation, many misdemeanor offenses and some felony offenses will now be subject to automatic expungement, but this process will not be put in place for 2 years. As a result, while many of the changes created by the Clean Slate legislation — which are described in greater detail below — are much-needed, they will take some time to be fully implemented.

Michigan’s Clean Slate legislation makes sweeping changes to Michigan's expungement law. Previously, Michigan law only allowed 1 felony or 2 misdemeanors to be expunged, and there were many restrictions attached to that process — it also required the filing of an application to set aside a conviction. According to a study from the University of Michigan Law School, only 6.5% of people who qualified for an expungement applied to have their conviction set aside within 5 years of becoming eligible. As a result, it was quite clear that the application process and restrictions in Michigan’s previous law needed to be updated.

Key Takeaways from Michigan’s Clean Slate Legislation

Under Michigan’s Clean Slate legislation, the following offenses cannot be expunged either by application or automatically:

• Alcohol or Drug-Related Driving Offenses, including Operating While Intoxicated and Operating While Visibly Impaired (Impaired Driving) convictions
• Life Offenses or an Attempt to Commit a Life Offense
• Any traffic offenses committed by a person with a commercial vehicle endorsement
• Any traffic offense that causes injury or death
• A felony conviction for domestic violence, if the person has a previous misdemeanor conviction for domestic violence
• Convictions for violations or attempted violations of MCL 750.136b(3), MCL 750.136d(1)(b) or (c), MCL 750.145c, MCL 750.145d, MCL 750.520c, MCL 750.520d, or MCL 750.520g

Automatic Expungement Process

Michigan’s Clean Slate legislation mandates that the following offenses will begin to be automatically set aside beginning about October 12, 2022:

• Misdemeanors that are punishable by less than 93 days if 7 years have passed since the imposition of the sentence.
• Misdemeanors that are punishable by 93 days or more if 7 years have passed since the imposition of the sentence so long as:
  • There are no pending criminal charges against the individual;
  • The individual has not been convicted of any crime within 10 years following the completion of the sentence for the felony conviction that would be expunged;
  • The individual has not more than 2 felony convictions and 4 misdemeanor convictions that are eligible for expungement; and
  • The offense is not an assaultive crime, serious misdemeanor, crime of dishonesty, related to human trafficking, or an offense involving a minor, vulnerable adult, injury or serious impairment, or death.
• A felony conviction and at least 10 years have passed from the completion of the sentence so long as:
  • There are no pending criminal charges against the individual;
  • The individual has not been convicted of any crime within 10 years following the completion of the sentence for the felony conviction that would be expunged;
  • The individual has not more than 2 felony convictions and 4 misdemeanor convictions that are eligible for expungement; and
  • The offense is not an assaultive crime, crime of dishonesty, related to human trafficking, or an offense involving a minor, vulnerable adult, injury or serious impairment, or death.

Expungement Application Process

As noted above, the Clean Slate legislation will not go into effect until April 10, 2021. For offenses that are ineligible for an automatic expungement or for individuals who do not want to wait for the automatic expungement process to begin in the fall of 2022, the following conditions apply to expungement applications:

• A maximum of 3 felony convictions may be expunged, but only one felony that is punishable by more than 10 years’ imprisonment may be expunged;
  • For an application to set aside more than one felony conviction, at least 7 years must have passed from the time the person completed the sentence for the felony convictions sought to be expunged;
• For an application that seeks to set aside only one felony conviction or only one serious misdemeanor, at least 5 years must have passed from the time the person completed the sentence for the conviction;
• For an application that seeks to set aside one or more misdemeanor convictions, at least 3 years must have passed from the time the person completed the sentence for the conviction or convictions;
• No more than 2 convictions for assaultive crimes can be expunged in a person’s lifetime; and
• To be eligible to apply for an expungement, the applicant cannot have any pending criminal charges at the time of the application and cannot have any convictions during the waiting periods identified above.

Please note that the information contained in this blog is only a high-level overview of some of the biggest takeaways from Michigan’s Clean Slate legislation. The changes made in the Clean Slate legislation are comprehensive and complicated. Again, please note that the changes contained in Michigan’s Clean Slate legislation, including the changes to the expungement application process, will not go into effect until April 10, 2021.