Automatic Expungement vs. Applying to the Court in Michigan

Clean Slate did not clear your record, or you are not sure it did

You may have heard that Michigan now clears old records on its own. That is only partly true. Since April 11, 2023, some convictions are set aside automatically under MCL 780.621g, part of the 2020 Clean Slate package. Many others are not, and those still need an application to the court under MCL 780.621d.

Both routes end in the same place. Under MCL 780.622(1), a conviction set aside either way is treated, for most purposes, as if it had not happened, and the State Police keep a nonpublic record of it under MCL 780.623. What that means day to day is covered in what expungement means in Michigan. This page compares how you get there.

This is general information about Michigan law. Whether a conviction fits either route depends on the exact offense, its maximum penalty, your dates and the rest of your record, so talk to a lawyer about your own case before you rely on it.

How the automatic route works

Nobody files anything. A computer program that MCL 780.621g(11) required the state to build sets aside eligible convictions in the State Police criminal history database once the waiting period has passed. The State Police say they send the courts a daily file of the convictions set aside.

The statute has three tiers. A misdemeanor punishable by 92 days or less is set aside 7 years after sentencing, with no limit on how many, MCL 780.621g(3) and (5). Under MCL 780.621g(1) the convicting court also sets these misdemeanors aside and notifies the arresting police agency. A misdemeanor punishable by 93 days or more is set aside after 7 years, up to 4 in a lifetime, MCL 780.621g(4) and (5). A felony is set aside 10 years after the later of sentencing or release from a Department of Corrections prison term, up to 2 in a lifetime, and only if it is "otherwise eligible" to be set aside by application, MCL 780.621g(2) and (5).

For the 93-day misdemeanor and felony tiers, MCL 780.621g(6) adds conditions: no criminal charge may be pending in the State Police database, and no new conviction may be recorded there during the waiting period. Under MCL 780.621g(7), those two tiers do not apply at all to a person with more than one conviction for an assaultive crime.

An automatic set-aside can be undone. MCL 780.621h requires the court to reinstate a conviction that was set aside in error, and to reinstate one if you have not made a good-faith effort to pay restitution that was ordered.

What the automatic route skips

MCL 780.621g(10) keeps the 93-day misdemeanor and felony tiers from reaching a conviction, or an attempt, for any of the items below. Under MCL 780.621c(2), the convictions that can never be set aside by application are also barred from the automatic route.

• Assaultive crimes, defined in MCL 780.621(4)(a) to cover the assault chapter of the Penal Code and other listed violent offenses.
• Serious misdemeanors, the list in MCL 780.811, which includes domestic assault, stalking and indecent exposure.
• Crimes of dishonesty, defined in MCL 780.621g(15) to include felony embezzlement, felony forgery and counterfeiting, racketeering and certain computer crimes.
• Any other offense punishable by 10 or more years in prison.
• Offenses whose elements involve a minor, a vulnerable adult, injury or serious impairment, or death, among those listed in the sentencing guidelines, MCL 777.1 to 777.69.
• Human trafficking violations.
• Every OWI. A first-violation OWI may be set aside only by application, MCL 780.621c(3).

How the application route is different

With an application, you do the work and a judge decides. You file in the court that convicted you, MCL 780.621(1). You send your fingerprints and a copy to the State Police, who check their records and the FBI’s and report to the court, MCL 780.621d(8). You serve the Attorney General and the prosecutor, who may contest it, and for an assaultive crime or a serious misdemeanor the prosecutor must notify the victim, who may speak, MCL 780.621d(10). The steps in order are in how to prepare an expungement application.

The waiting periods are shorter: 3, 5 or 7 years depending on the conviction, MCL 780.621d(1) to (3), counted from the last of sentencing, probation, parole or prison. The reach is wider too. An application can cover up to 3 felonies and the rest of your Michigan convictions, MCL 780.621(1)(a), including up to 2 assaultive crimes in a lifetime, MCL 780.621(1)(b). Offenses within 24 hours from one transaction may count as one conviction under MCL 780.621b, a rule written for applications.

The trade-off is discretion. Under MCL 780.621d(13), the judge may grant the application only after finding that your circumstances and behavior since the conviction warrant it and that a set-aside is consistent with the public welfare.

Only an application can reach domestic assault and other assaultive crimes (setting aside a domestic violence conviction), a first-violation OWI (setting aside an OWI conviction and the firm’s OWI expungement page), crimes of dishonesty, felonies punishable by 10 years or more other than life offenses, felonies beyond the automatic limit of 2, and anything you want cleared before the 7- or 10-year mark. The firm’s page on getting a felony expunged covers felony questions.

How to check whether an automatic set-aside happened

MCL 780.621g does not require anyone to notify you when a conviction is set aside. The State Police Clean Slate page lists three ways to see what remains on your record. If you believe a conviction should have cleared and did not, the Attorney General’s expungement page says to contact the State Police by email.

• ICHAT, the State Police name-based search, shows public criminal history only. A conviction that has been set aside should not appear. There is a fee for each search.
• A fingerprint-based personal record check through the State Police returns everything tied to your prints, both public and nonpublic, for a fee.
• The court of conviction. MCL 780.621g(13) makes the State Police record of automatic set-asides available to every court, so you can ask the clerk what the court file shows.

Choosing a route, and when a lawyer matters

If a conviction fits both routes, you do not have to wait for the automatic one. Nothing in MCL 780.621g bars an application, and the waiting periods in MCL 780.621d are shorter. Applying puts the decision before a judge, with the prosecutor and Attorney General able to object. Waiting requires no filing, but it depends on no new charge or conviction appearing during the wait.

A lawyer is most useful when you are not sure which list a conviction is on, when you have an assaultive crime or more than one felony, when you have convictions in more than one court, or when an objection is likely. The firm’s expungement page and its Michigan Clean Slate page have more on both routes.

The office of Attorney Shawn Haff practices criminal defense in Michigan state courts, including the Kent County courts in Grand Rapids and Wyoming, and offers a free consultation at 616-438-6719. Bring your ICHAT results and the sentencing dates for each conviction.