Setting Aside (Expunging) a Domestic Violence Conviction in Michigan

A misdemeanor domestic violence conviction can be set aside in Michigan, but only by application to the convicting court and only after a 5-year waiting period.^[1] A felony domestic violence conviction cannot be set aside at all if the person has a previous misdemeanor conviction for domestic violence.^[2] "Set aside" is the term Michigan's statute uses; "expunge" is the popular word for the same thing.

This page covers who can apply, when, what the judge decides, the victim's role, and what a set-aside does and does not change. Domestic assault is excluded from Michigan's automatic process, which is explained in Does automatic expungement cover domestic violence?

Which domestic violence convictions can be set aside?

Michigan's Setting Aside Convictions Act lets a person convicted of one or more offenses, but not more than a total of 3 felonies, apply to have all of the person's Michigan convictions set aside, subject to the act's limits.^[7] Three of those limits matter in domestic violence cases.

Misdemeanor domestic assault is eligible. It is not on the statute's list of convictions that can never be set aside.^[1]

Some felony convictions are barred. A person may not apply for, and a judge may not grant, a set-aside of "a felony conviction for domestic violence, if the person has a previous misdemeanor conviction for domestic violence."^[2] For this purpose "domestic violence" has the meaning given in MCL 400.1501, which is broader than the domestic assault statute.^[8] The bar therefore is not limited to third-offense domestic assault; a felony such as strangulation or felonious assault against a family or household member may fall within it.^[8] The statute's other permanent bars include felonies punishable by life imprisonment.^[9]

There is a lifetime limit of two. An applicant "may not have more than a total of 2 convictions for an assaultive crime set aside under this act during the applicant's lifetime."^[3] The act's definition of assaultive crime includes any violation of the Penal Code's assault chapter, which covers domestic assault and aggravated domestic assault.^[10]

One related rule also leaves assaultive crimes out. Multiple offenses committed within 24 hours in one transaction can be treated as a single conviction for set-aside purposes, but not if any of them is an assaultive crime.^[11]

How long is the waiting period?

The most common mistake about domestic violence expungement is the waiting period. The 3-year period applies to misdemeanors "other than" a serious misdemeanor, a first-violation operating while intoxicated offense, or any other misdemeanor conviction for an assaultive crime.^[12] Domestic assault and aggravated domestic assault are named in the definition of serious misdemeanor.^[13] They fall under the 5-year rule.^[1]

What is being set aside	Waiting period
Ordinary misdemeanors	3 or more years[12]
Serious misdemeanors, including domestic assault and aggravated domestic assault	5 or more years[14][13]
One felony conviction	5 or more years[14]
More than one felony conviction	7 or more years[15]

The period does not run from the date of the offense or the plea. For a serious misdemeanor it runs from whichever happens last among the listed events, which include imposition of the sentence, completion of probation, and completion of any term of imprisonment.^[14] A person sentenced to two years of probation therefore starts counting when probation ends.

The court also may not grant the application unless there are no criminal charges pending against the applicant and the applicant has not been convicted of any criminal offense during the waiting period.^[16]

How does the application work?

1. Prepare the application. The State Court Administrative Office form is MC 227, Application to Set Aside Conviction(s).^[17] The application is signed under oath and includes the applicant's full name and current address, a certified record of each conviction to be set aside, and statements about pending charges, prior applications and convictions during the waiting period.^[18]
2. Send fingerprints to the State Police. The applicant submits a copy of the application and one complete set of fingerprints to the Michigan State Police with a $50 fee.^[19] The court may not act until the State Police report the applicant's record.^[19]
3. Serve the Attorney General and the prosecutor. A copy of the application must be served on the Attorney General and on each prosecuting attorney's office that prosecuted the crime, and each must have an opportunity to contest it.^[4]
4. Notice to the victim. For an assaultive crime or a serious misdemeanor, the prosecuting attorney must notify the victim by first-class mail to the victim's last known address.^[4]
5. Hearing and order. The judge decides the application; the order form is MC 228.^[17]

What does the judge decide?

Meeting the eligibility rules does not entitle anyone to a set-aside. The statute calls it "a privilege and conditional," and says it "is not a right."^[20] The court may grant the application if the applicant's circumstances and behavior since the conviction warrant it and setting aside the conviction is consistent with the public welfare.^[21] Those are two separate requirements, and both have to be met.^[21]

Michigan appellate courts have put limits on the reasons a judge may give for saying no:

• The nature of the offense, standing alone, is insufficient to warrant denial.^[22]
• In People v Butka (2024), the Michigan Supreme Court held that the statements of two victims did not by themselves comprise the public welfare, and that the trial court abused its discretion in denying the application.^[5]

If the application is denied, another one concerning the same conviction may not be filed until 3 years after the denial, unless the court sets an earlier date in its order.^[23]

What rights does the victim have?

Because domestic assault is both an assaultive crime and a serious misdemeanor, the victim in a domestic violence case is entitled to notice of the application.^[4][10][13] The victim "has the right to appear at any proceeding under this act concerning that conviction and to make a written or oral statement."^[4]

A set-aside does not take away the victim's other remedies. It does not affect the right of a victim to prosecute or defend a civil action for damages.^[24] It does not relieve any obligation to pay restitution.^[25] And the misdemeanor offense of divulging a set-aside conviction does not apply to the victim.^[26] More on the victim's role in a criminal case is in Crime victim rights and Restitution.

What a set-aside changes

After the order is entered, the person, "for purposes of the law, is considered not to have been previously convicted," except as the act provides.^[27] The public record changes accordingly: the State Police keep only a nonpublic record, which is exempt from disclosure under the Freedom of Information Act.^[28][29] A person, other than the applicant or a victim, who knows or should have known that a conviction was set aside and who divulges, uses, or publishes information about it commits a misdemeanor punishable by up to 90 days or a fine of up to $500, or both.^[26] A set-aside conviction also cannot be used as evidence in an action for negligent hiring, admission, or licensure.^[30]

The effect on employment is discussed in Jobs and background checks.

What a set-aside does not change

Subject	Rule
A later charge	The set-aside conviction may be considered a prior conviction for purposes of charging a crime as a second or subsequent offense and for habitual-offender sentencing.[6]
Access by the justice system	The nonpublic record remains available to courts, law enforcement, prosecutors, the Department of Corrections, the Attorney General and the Governor for listed purposes.[31]
Money already paid	The applicant is not entitled to the return of any fine, costs, or other money paid.[32]
Restitution	Any obligation to pay restitution owed to the victim continues.[25]

The first row deserves emphasis. An expunged domestic assault can still make a later domestic assault a second or third offense.^[6] How those enhancements work is explained in Second and third offense domestic violence.

Firearm rights after a set-aside

Two statutes address this directly. Michigan's firearm statute "does not apply to a conviction that has been expunged or set aside, or for which the person has been pardoned, unless the expunction, order, or pardon expressly provides that the person shall not possess a firearm or ammunition."^[33] The federal definition of a misdemeanor crime of domestic violence says a person shall not be considered convicted "if the conviction has been expunged or set aside," with a similar exception for an order that expressly bars firearms.^[34]

No source reviewed for this guide decides whether a Michigan set-aside, which leaves a nonpublic record that can be used as a prior, satisfies the federal provision.^[34] Concealed pistol licensing has a rule of its own.^[35] These questions are covered in Can gun rights be restored? Anyone who intends to possess a firearm after a set-aside should get individual legal advice first.

If the case ended in a deferral instead of a conviction

A case that was deferred and dismissed under MCL 769.4a is not a conviction to be set aside, but it does not disappear from the arithmetic. It is "considered a misdemeanor conviction" when counting a person's convictions to decide eligibility to set aside other convictions.^[36] See Does a deferral count as a conviction?

When a pardon is the only route

For a conviction the statute bars from being set aside, a pardon from the Governor is a separate route. The Parole Board reviews pardon applications and makes a recommendation, and the ultimate decision lies with the Governor.^[37] The Parole Board's form states that it will not process a pardon application where expungement is available to the petitioner as an appropriate remedy.^[38]