What Expungement Means in Michigan, and What a Set-Aside Does

You have a conviction, and someone mentioned expungement

Maybe a job application asked about convictions, a landlord ran a background check, or a probation officer said your case might qualify for expungement one day. Michigan law does not use that word. The statute is the Setting Aside Convictions Act, MCL 780.621 and the sections that follow it, and it talks about a conviction being "set aside." Lawyers, judges and the State Police use both words, so this guide does too.

There are two ways a Michigan conviction gets set aside. You can apply to the court that convicted you under MCL 780.621d, or, for a narrower group of convictions, the State Police set it aside automatically after a waiting period under MCL 780.621g, a process that began on April 11, 2023. The differences are laid out in expungement by application vs. automatic. This page covers what a set-aside is, what it changes and who qualifies.

This is general information about Michigan law, not advice about your record. Eligibility turns on details like the exact charge, the date your sentence ended and what else is on your record, so talk to a lawyer about your own case before you count on anything here.

What a set-aside does

Under MCL 780.622(1), once the order is entered or the automatic set-aside takes effect, you are "considered not to have been previously convicted" of that offense, except where the act itself says otherwise. In practice the conviction leaves your public criminal history. The State Police public search, ICHAT, covers public criminal history record information only, so a conviction that has been set aside should no longer appear there.

The record is not destroyed. MCL 780.623(2) requires the State Police to keep a nonpublic record of the order and of the arrest, fingerprints, conviction and sentence. That record is available only to courts, judicial branch agencies, the Department of Corrections, law enforcement, prosecutors, the Attorney General and the Governor, and only for the purposes the statute lists, such as charging and sentencing decisions, licensing by a judicial agency, a pardon review, or hiring by a police agency or the Department of Corrections.

The statute also protects you going forward. Under MCL 780.623(5), a person other than you or the victim who knows about the set-aside and divulges, uses or publishes the information commits a misdemeanor, apart from the uses the statute allows. For the firm’s longer treatment of both routes, see the expungement attorney page and the Michigan Clean Slate page.

What a set-aside does not do

The same act lists what stays the same after an order. These are the points that surprise people most.

• No refund. You do not get back any fine, costs or other money you paid because of the conviction, MCL 780.622(2).
• Restitution is still owed. A set-aside does not cancel a restitution order, and the convicting court keeps its power to enforce it, MCL 780.622(7).
• It can still count as a prior. Under MCL 780.622(9), a set-aside conviction may be treated as a prior conviction when a later offense is charged as a second or subsequent offense, or for habitual-offender sentencing. For OWI that matters a great deal; see what an OWI set-aside does and does not do.
• Your driving record does not change. An order for a traffic offense must not require the Secretary of State to remove the conviction from your driving record, MCL 780.621c(5).
• Sex offender registration continues. If the offense is a listed offense under the Sex Offenders Registration Act, you are still treated as convicted for purposes of that act, MCL 780.622(3).
• Civil cases are unaffected. A victim keeps the right to bring or defend a civil suit for damages, MCL 780.622(5).
• Federal law is separate. Michigan’s statute governs Michigan records. Whether a set-aside changes a federal firearm or immigration consequence is a federal-law question, and one to put to a lawyer who handles that area.

Who can apply, and for how many convictions

MCL 780.621(1) lets a person apply to set aside one or more convictions, with limits. You may not have more than a total of 3 felonies set aside in your lifetime, MCL 780.621(1)(a). There is no cap on misdemeanors, but no more than 2 convictions for an assaultive crime may be set aside in a lifetime, MCL 780.621(1)(b), and no more than 1 felony for the same offense if that offense is punishable by more than 10 years, MCL 780.621(1)(c).

A rule people call the "one bad night" provision helps with the count. Under MCL 780.621b, felonies or misdemeanors that happened within 24 hours and arose from the same transaction are treated as one conviction, unless any of them is an assaultive crime, involved a dangerous weapon, or carries a maximum of 10 or more years.

Some convictions can never be set aside, by application or automatically. MCL 780.621c(1) bars, among others, felonies with a life maximum, second- and third-degree criminal sexual conduct, fourth-degree CSC if the conviction was on or after January 12, 2015, the listed child abuse and child sexually abusive material offenses, any traffic offense that caused injury or death, a traffic offense by a commercial driver in a commercial vehicle, and a felony domestic violence conviction where there is a prior misdemeanor domestic violence conviction. Operating while intoxicated is barred too, with one exception: under MCL 780.621c(3), a first-violation OWI may be set aside by application, once in a lifetime, a change that took effect February 19, 2022. The details are on who is eligible to set aside an OWI and setting aside a domestic violence conviction.

How long you wait, and what the judge decides

The waiting periods are in MCL 780.621d. You may apply 7 or more years after the last of sentencing, completion of probation, discharge from parole or release from prison if you are asking to set aside more than one felony, MCL 780.621d(1). The wait is 5 or more years for one felony, for a serious misdemeanor or for a first-violation OWI, MCL 780.621d(2), and 3 or more years for other misdemeanors, MCL 780.621d(3). "Serious misdemeanor" is defined by MCL 780.811 and includes domestic assault, aggravated domestic assault, stalking and an OWI involving a crash that damaged property or hurt someone.

The clock does not run from the offense or the plea. It runs from whichever listed event came last, so a person who finished two years of probation starts counting when probation ended. The court also may not grant the application if any criminal charge is pending or if you were convicted of any offense during the waiting period, MCL 780.621d(4).

Meeting every rule does not entitle you to an order. MCL 780.621d(14) calls a set-aside "a privilege and conditional," not a right. Under MCL 780.621d(13) the judge may grant it only on finding that your circumstances and behavior since the conviction warrant it and that setting it aside is consistent with the public welfare. If the judge says no, you generally wait 3 years before filing again on that conviction unless the order sets an earlier date, MCL 780.621d(5).

What to do next

Start by learning exactly what is on your record. The State Police ICHAT search shows your public Michigan criminal history, though not juvenile, traffic or out-of-state records, and the clerk of each court where you were convicted can give you certified copies with the dates you need to count the waiting period. The step-by-step list is in how to prepare an expungement application.

A lawyer matters most when the count is close, when an assaultive crime or a felony is involved, when you have a conviction outside Michigan, or when the prosecutor or Attorney General is likely to object. Those are judgment calls about your own facts, and a page like this one cannot make them for you.

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.