What an OWI Set-Aside Does and Does Not Do in Michigan

A set-aside changes the criminal record, not the driving record. Once a judge sets aside an OWI, the person is considered, for purposes of the law, not to have been previously convicted, with the exceptions written into MCL 780.622 and 780.623.^[1] The conviction stays on the Secretary of State driving record, and police, prosecutors and courts can still see it in a nonpublic file.^[2][5]

This page covers what changes after an order is entered and what stays the same. Who qualifies is on who is eligible to set aside an OWI, and how to apply is on setting aside an OWI conviction.

What happens when the order is entered

The court sends a copy of the order to the arresting agency and to the Michigan State Police.^[8] The State Police then keep a nonpublic record of the order and of the arrest, fingerprints, conviction and sentence.^[5] That nonpublic record is exempt from the Freedom of Information Act.^[9] The person whose conviction was set aside can get a copy on payment of a fee.^[10]

The public State Police search, ICHAT, searches "public criminal history record information."^[11] The nonpublic record is not public; it is released only to the agencies named in the statute and only for the purposes the statute lists.^[5]

The statute also protects the record going forward. A person other than the person whose conviction was set aside, or a victim, who knows or should have known of the set-aside and divulges, uses or publishes information about the conviction commits a misdemeanor, except for the uses the statute allows.^[12] But an entity is not liable for reporting a public record of a conviction that was available as a public record on the date of the report.^[13]

Who can still use a set-aside OWI

The nonpublic record is available on request to a court, a judicial-branch agency, the Department of Corrections, a law enforcement agency, a prosecuting attorney, the Attorney General or the Governor, for these purposes:^[5]

• Decisions on charging, plea offers and sentencing.^[5]
• Sentencing for a later offense punishable as a felony or by more than 1 year.^[14]
• Showing that a person applying for a set-aside already had one.^[14]
• Hiring by the Department of Corrections or a law enforcement agency.^[5]
• Licensing by a judicial-branch agency, and a Governor's pardon decision on another offense.^[14]

A set-aside OWI can still count as a prior

The most important exception for OWI is the repeat-offense rule. A set-aside conviction "may be considered a prior conviction" by a court, police agency, prosecutor or the Attorney General for charging a crime as a second or subsequent offense, and for habitual-offender sentencing.^[4]

That matters because Michigan's OWI penalties climb with prior convictions. An OWI within 7 years of a prior conviction is punishable by up to 1 year in jail, and an OWI after two or more prior convictions is a felony "regardless of the number of years that have elapsed."^[15] So a set-aside first offense may still be counted as one of the two priors that make a later case a felony.^[4][15] The full rules are on how prior convictions are counted and third-offense felony OWI.

Some sources say an expunged OWI "can't be used against you if you're arrested again." Under MCL 780.622(9) that is wrong.^[4]

Why the driving record does not change

Two statutes keep the OWI on the Secretary of State record. The set-aside law says an order for a traffic offense "must not require that the conviction be removed or expunged" from the SOS driving record.^[2] And the Vehicle Code says that, except as that act provides, a court "shall not order expunction of any violation reportable to the secretary of state."^[16] The SOS manual adds that the Secretary of State cannot set aside a court conviction.^[17]

According to the SOS driver manual, a conviction for impaired driving remains on the driving record permanently.^[3] Insurers may obtain driving-record information for rating and underwriting, and employers may obtain it to verify a commercial or chauffeur's license.^[18] The set-aside statutes read for this guide do not say how the Secretary of State treats a set-aside conviction when it counts convictions for a later license sanction; the order does not require removal of the conviction from that record.^[2][3] For more on the driving-record side, see how long an OWI stays on your record and OWI and car insurance.

Commercial drivers face a separate federal rule. A state must not mask, defer judgment on or divert a CDL holder's traffic conviction so that it would not appear on the national CDL driver record.^[19] See CDL disqualification after an OWI.

Money, victims and lawsuits

• No refunds. Fines, costs and other money paid because of the conviction are not returned.^[6]
• Restitution stays owed. The act does not relieve any obligation to pay restitution, and the convicting court keeps its power to enforce a restitution order.^[20]
• Victims' lawsuits. A set-aside does not affect a crime victim's right to bring or defend a civil action for damages.^[7]
• Negligent hiring. A set-aside conviction and related records cannot be used as evidence in an action for negligent hiring, admission or licensure against anyone.^[21]
• Double jeopardy. The person can still rely on the conviction to bar a second prosecution for the same offense.^[22]

Does and does not: a summary

Question	Answer under the statutes
Treated as not previously convicted?	Yes, for purposes of the law, except as sections 2 and 3 of the act provide.[1]
Removed from the SOS driving record?	No.[2][16]
Available to police and prosecutors?	Yes, through the nonpublic record, for listed purposes.[5]
Counted as a prior for a new OWI charge?	It may be.[4]
Fines refunded?	No.[6]
Restitution or victim lawsuits wiped out?	No.[7]
Usable to prove negligent hiring?	No.[21]
Hidden from a CDL record?	No; federal rules bar masking.[19]

What this guide does not cover

Federal systems apply their own rules. The federal job application form OF-306 tells applicants to omit convictions whose record was "expunged under Federal or state law."^[23] Whether that instruction reaches a Michigan set-aside is a question to put to the hiring agency. Immigration and Canadian entry rules are separate again; see OWI and immigration status and traveling to Canada with an OWI. Employment questions are covered on OWI and your job.