How Can I Make My Michigan Adult Criminal Conviction Nonpublic?
The following provides information about getting a Michigan adult criminal conviction set aside (made into a nonpublic record). Under Michigan criminal law, you are an adult at age 17. For information about getting a juvenile adjudication set aside, click the link to Setting Aside a Juvenile Adjudication. Online help is also available from Michigan Legal Help
to prepare the application through an automated interview process and to provide a toolkit with legal articles, FAQs, procedure, and other resources.
What Does It Mean to "Set Aside a Conviction?"
Setting aside a conviction removes an adult Michigan criminal conviction from the public record of the Michigan State Police and the court, and is sometimes referred to as an expungement. The law that allows a person to apply to have one conviction set aside provides that the record be made nonpublic so that any criminal record check, made by someone other than the agencies specified in the law, will reveal no conviction.
A Michigan criminal conviction that has been made nonpublic through a court order setting aside that conviction is still available to a court, a law enforcement agency, some licensing agencies, and certain other government agencies specified in the law. For a detailed listing of these agencies, see the Nonpublic and Limited-Access Court Records chart
Also, if you are convicted of a new crime after a conviction is made nonpublic, the nonpublic record of the conviction can be used to increase your criminal sentence for your new crime.
Can I Apply to Get My Conviction Made Nonpublic?
A person who applies to have a conviction made nonpublic must meet certain conditions. You should first understand three things.
You need to know what is actually on your criminal record. Although it is not required, it is highly recommended that you get a copy of your criminal record from ICHAT
. There is a cost for this. You can find out from your criminal record whether you have more than one conviction, and for what crime(s) you were convicted. If you don't check your criminal record first and you have more than the allowable convictions, you will find out from the judge at a hearing on your application that you are not eligible, and you will have wasted your time and money.
A criminal complaint can have more than one count or charge on it. If you were convicted of more than one charge or count, even if the charges were on the same case, you have more than one conviction. For example, if you were charged with and convicted of Possession of a Firearm and Possession with Intent to Deliver in the same case, you have two convictions.
If you were found guilty and sentenced to probation or Holmes Youthful Trainee status under one of the following statutes and successfully completed that probation or Holmes Youthful Trainee status, a nonpublic criminal record of this is maintained by the Michigan State Police and the sentencing court. This is called a “deferred judgment of guilt.” The record of a deferred judgment of guilt is not considered a conviction for purposes of determining your eligibility to apply to have a conviction made nonpublic. The Michigan laws that permit deferred judgment of guilt are:
MCL 333.7411 – Controlled Substance Abuse
MCL 436.1703 – Minor in Possession
MCL 600.1076 – Drug Treatment Court
MCL 750.350a – Parental Kidnapping
MCL 750.430 – Licensed Health Professional Practicing Under the Influence
MCL 762.13 – Holmes Youthful Trainee
MCL 769.4a – Domestic Violence
Answer the following seven questions to find out if you are eligible to have your conviction made nonpublic.
- Do you have a federal conviction?
- Do you have a criminal conviction in another state?
- Do you have more than one adult criminal conviction in Michigan, excluding those for which judgment of guilt was deferred and excluding up to two minor offenses as defined in MCL 780.621(10)(b)?
- Were you convicted of a felony or an attempt to commit a felony for which the maximum punishment is life imprisonment?
- Were you convicted of felony criminal sexual conduct (first, second, or third degree), or assault with intent to commit criminal sexual conduct?
- Is the conviction you want to have set aside a traffic offense? A traffic offense is a conviction for violating the Michigan Vehicle Code or a local ordinance substantially corresponding to that act, which violation involves the operation of a vehicle.
- Has it been less than five years since the date of your conviction, or if you were imprisoned, has it been less than five years since you were released?
If you have answered no to all seven of the above questions, you may be eligible to have your Michigan adult criminal conviction set aside. If you answered yes to any of the above questions, you are not eligible to have your Michigan criminal conviction made nonpublic. NOTE: Although a conviction for a nontraffic offense reportable to the Secretary of State may be set aside by the court, as stated in MCL 257.732(22)
, the court cannot order the removal of the conviction from your driving record.
How Do I Apply to Get My Conviction Made Nonpublic?
The following information explains the steps necessary to get a conviction made nonpublic (set aside).
Statutes, Court Rules, and Other Legal Authority
Using Court Forms
These forms follow the procedures stated in the Michigan Compiled Laws and Michigan Court Rules and can be used without the assistance of an attorney. Instructions for completing and using the forms are included.
When completing a form online, you must print the number of copies you will need for filing with the court and serving on the parties. See the upper right-hand corner of each form for this information. If you do not provide the court with the correct number of copies, the court might reject the form for nonconformance under the authority of Michigan Court Rule 8.119(C). Unless specifically required by court rule or statute, the court is not responsible for making copies of forms for you.
Completing and Filing an Application
Do I Need an Attorney?
In order to apply to make your conviction nonpublic, you must file an application with the court where you were convicted. An attorney can assist you or you may represent yourself. If you are able to follow all the steps outlined below, you may not need an attorney. However, if after reading these steps you think you need assistance, you should consult an attorney.
What Does it Cost?
You will have to pay to get certain documents. If you are representing yourself, you should plan to pay about $100.00 in costs to apply to have your conviction made nonpublic. It costs about $10.00 to get your criminal record from ICHAT. Some law enforcement agencies may fingerprint you without charge, but if not, it could cost from $10.00 to $25.00. It costs $10.00 for a certified copy of your conviction record from the court, plus $1.00 for each page of that record. It costs $50.00 for the application fee to the Michigan State Police. There may be a cost to have your application notarized by a notary public.
Step 1: Get a Certified Copy of Your Conviction
After you have reviewed your criminal record and determined that you are eligible to apply, request a certified record of the conviction from the clerk of the court. This record can be a certified copy of the judgment of sentence, a certified copy of the probation order, or a certified copy of the case history (register of actions).
You will need to file the application with the court and get a hearing date, so you can get the certified copy of the conviction at that time. There is a $10.00 fee for getting a certified copy of a record plus $1.00 for every page of that record. There is no fee for filing the application with the court. There may be a cost to have your application notarized by a notary public.
Step 2: Get Fingerprinted
Go to the local law enforcement agency for a fingerprint card and to get fingerprinted on the applicant card (R 1-8). There may be a fee for fingerprinting. Fill out the card completely. The Michigan State Police will use this fingerprint card to check your records against its files. Do not make copies of the fingerprint card because only the Michigan State Police needs the card.
Step 3: Complete Form MC 227, Application to Set Aside Conviction
Complete form MC 227, Application to Set Aside Conviction, using the information from the certified copy of your conviction to fill in the blanks. Follow the instructions in the form packet. Make five copies of the certified copy of your conviction. You will need these later. Do not sign the form until you are in front of a notary public or the clerk of the court.
Step 4: Signing the Application Under Oath
Now that the application (form MC 227) is completed, you must sign your application under oath in front of a notary public (you can find one at a bank) or the clerk of the court. You must bring your photo identification with you when you sign the application. There may be a fee to have your application signed in front of a notary public.
You can either sign one copy of the application form in front of the notary public or the clerk of the court and make five additional copies of the application form later or you can print and bring all six copies of the completed and unsigned application form to sign in front of the notary public or the clerk of the court.
Generally, it is a good idea to file your application packet in person with the court. That way, if you have forgotten something or need to change something, you can take care of it right away. Because of this, it is more practical to sign your application in front of the clerk of the court. However, if you decide to sign your application in front of a notary public, you can still file your application packet in person with the court.
Step 5: Filing the Application With the Court
File your application with the court where you were convicted. Follow the directions in either 5a or 5b below. As stated in step 4, it is a good idea to file your application packet in person with the court. At the time of filing, the clerk of the court will write the name of the judge assigned to your case on all six copies of your application (form MC 227).
After the court returns the five remaining copies of the application to you, individually staple each of the copies to the five copies of the certified record of conviction that you kept as directed above. You will need three of these remaining five stapled packets for the Attorney General, the prosecuting official, and the Michigan State Police. See Step 7.
Depending on the local practice of the court, the clerk of the court may set a hearing date at the time of filing. If a hearing date is set at the time of filing, the clerk of the court will complete the Notice of Hearing section. If no hearing date is set at the time of filing, you should contact the court to schedule a hearing date when you receive the report from the Michigan State Police. Ask the court how notice of the hearing will be given to the Attorney General and the prosecuting official.
5a Filing in Person
If you signed your application (form MC 227) in front of the clerk of the court, you can file it at the same time. If you signed your application in front of a notary public, you can still file it in person with the clerk of the court. Take all six copies of the application form and all six copies of the certified record of conviction to the clerk of the court.
The clerk of the court will keep one copy of the application and the certified record of conviction for the court file and return to you the remaining five copies of both the application and the certified record of conviction.
5b Filing by Mail
If you decide to mail your application to the court, mail to the court all six copies of the application form, the certified record of conviction, and one self-addressed, postage-paid envelope. Keep the remaining five copies of your certified record of conviction in a safe place because you will need them later.
The clerk of the court will keep one copy of the application and the certified record of conviction for the court file and return to you the remaining five copies of the application in the self-addressed envelope that you provided.
Step 6: Make Out a Money Order or Check to the State of Michigan for the Application
The application fee is $50.00, made out to the State of Michigan in the form of a money order or a check. This fee is sent with the application to the Michigan State Police for processing.
Step 7: Serve the Application
The application and notice of the hearing date must be served on (mailed to) the Attorney General of the State of Michigan, the prosecuting official of the county or political subdivision who prosecuted the case, and the Michigan State Police. While you are at the court, you can ask the clerk of the court how to get the correct prosecuting official’s address (county, city, or township) or see www.michiganprosecutor.org
Send the fingerprint card, application fee, and a copy of your application packet to the Michigan State Police. The address is:
Michigan State Police
Criminal Justice Information Center - Criminal History
PO Box 30266
Lansing, Michigan 48909
Send a copy of your application packet to the Attorney General Office. The address is:
Office of the Attorney General
PO Box 30217
Lansing, Michigan 48909
Send a copy of your application packet to the prosecuting official in the county where you were prosecuted. Get the address from the court clerk.
Step 8: Fill Out the Proof of Service for the Court
You should have two copies of the application packet left. One of these copies is for you to keep for your records.
On both copies of the application, fill in the Proof of Service at the bottom of the form. Write in the date that you mailed the application packets to the prosecuting official, the Attorney General, and the Michigan State Police. Then date and sign the Proof of Service.
After you fill out and sign the Proof of Service, mail or take one of the remaining application packets with the completed Proof of Service to the court. This shows the court that you mailed copies to the prosecuting official, the Attorney General, and the Michigan State Police.
How the Application is Processed
The Attorney General of the State of Michigan will review your application along with your criminal history report as provided by the Michigan State Police to determine whether you qualify to have your conviction set aside. The Attorney General is given the opportunity to object to the application at the hearing and may or may not appear at the hearing.
The prosecuting official will review your application and your criminal history record as well and also has the opportunity to object to the application at the hearing and may or may not appear at the hearing. In addition, the prosecuting official will notify the victim of an assaultive crime or serious misdemeanor when an application has been filed to set aside the conviction of that assaultive crime or serious misdemeanor. The victim has the right to appear at the hearing on the application and to make a written or oral statement.
When the Michigan State Police receives the application, it will prepare a report from its records and the records of the Federal Bureau of Investigation and will send a copy to you and a copy to the court. The report will indicate what your criminal record is, if you have more than one conviction, if there are any pending charges against you, and whether or not you have previously had a conviction set aside. The court cannot hold the hearing on your application until the Michigan State Police has submitted its report to the court.
Preparing for the Hearing
Most courts will schedule a hearing date at the time you file the application. In the Third Circuit Court of Wayne County, the hearing is set after the Michigan State Police and the Attorney General respond. The hearing cannot be held until the court receives the Michigan State Police report required by MCL 780.621(5). Because it can take several weeks for the Michigan State Police to prepare the report, it is common for the court to schedule the hearing to be held on a date several months after you file the application. Contact the clerk of the court two days before the scheduled hearing date to make sure the Michigan State Police report has been received and that the hearing will proceed as scheduled and to find out whether to go directly to the courtroom or to check in with the clerk first.
If no hearing date was set by the court when you filed your application packet, you should contact the court to schedule a hearing date when you receive the report from the Michigan State Police. Ask the court how notice of the hearing will be given to the Attorney General and the prosecuting official.
On the hearing date, any of the following may happen:
- The prosecuting official and/or a representative from the Attorney General's Office may attend the hearing to object to the application. In that case, the court will hear what each has to say before making its decision.
- If neither the prosecuting official nor a representative of the Attorney General attends the hearing to object to the application, the court will make its decision based on the report from the Michigan State Police and the court's own records as well as any response that may have been filed on behalf of the prosecuting official or the Attorney General.
- If the charge for which you were convicted was an assaultive crime or a serious misdemeanor, and the victim of that crime attends the hearing and/or provides an oral or a written statement, the court will consider that statement before making its decision.
- You will have the opportunity to speak to the court at the hearing. If you do not appear, your application may be dismissed.
- You may be asked to prove to the judge that you deserve to have your conviction set aside and that you have been rehabilitated. Therefore, you may want to present evidence that you are a good person and that you have changed since you committed your crime. You may want to show evidence of your work history, drug or alcohol treatment, educational achievements, or other successes you have had since your conviction. Think about what you can use to convince the judge that you are a different person than when you were convicted and that you deserve a second chance. Examples are resumes, letters of recommendation, transcripts from school, certificates of award, and witness affidavits.
When you go to court for the hearing, take your copy of the application packet, any evidence you have gathered, and form MC 228, Order on Application to Set Aside Conviction.
Attending the Hearing
The hearing will usually take place at the court where the application was filed. Read the notice of hearing to see the date and place of the hearing. It is important for you to be there on time; if you file an application and are not in court when your case is called, the application may be denied.
Bring your copy of the application packet and form MC 228, Order on Application to Set Aside Conviction. Also bring any witnesses who are willing to testify. The court will call the case and you will have the opportunity to explain your request to the judge. Be prepared to tell the judge why you think it is in the public’s interest to set aside your conviction. If the judge wants to hear from the witnesses, ask them to tell the court what they know about you.
The judge will ask the prosecuting official and the representative from the Attorney General's Office, if present, to state any objections.
If the judge determines that your circumstances and behavior from the date of your conviction to the time of the hearing warrant setting aside the conviction, and that setting aside the conviction is consistent with the public welfare, the court may enter an order setting aside your conviction (form MC 228).
The court prepares the Order on Application to Set Aside Conviction, form MC 228, after the hearing. The court will provide you with a copy of the order. Normally, the court will send a copy to the arresting agency and the Michigan State Police. However, you should check with the court clerk to make sure of this. If the court agreed to make your conviction nonpublic, the Michigan State Police will receive a copy of the order setting aside a conviction and your record will be maintained as nonpublic. If the court denies your request to set aside your conviction, the record will remain public.
What an Order Setting Aside a Conviction Doesn't Do
An order setting aside a conviction does not prevent everyone from getting information about your conviction. Although your conviction has been set aside, it is only sealed from the public. Certain law enforcement and government agencies can still find out information about your conviction.
An order setting aside a conviction does not prevent the court from using that information when deciding a sentence for a crime you might commit in the future. If you are convicted of another crime after you have a conviction set aside, it can still be used in the sentencing phase of the new conviction.
An order setting aside a conviction does not free you from your obligation to pay any fine, fees, costs, and restitution that were ordered and that remain unpaid. You must continue to make payments on this debt until it is paid in full.
What You Can Say About Your Conviction
If the court issues an order setting aside a conviction, you can legally state on any job or school application that you have never been convicted of or arrested for a crime.
What Agencies Can Access Your Nonpublic Records
The Law Enforcement Information Network (LEIN) is available to all prosecutors, local and statewide law enforcement agencies, and some public defender agencies. It contains information regarding arrests, open warrants, adjudications, and convictions. These agencies would have access to a sealed file. The Michigan State Police also has access to nonpublic records. For detailed information about who may access the nonpublic record of your conviction, see the chart of Nonpublic and Limited-Access Court Records
Followup With Local Law Enforcement
Because many prospective employers ask that you get a copy of your criminal record from the local arresting agency, it is important that this record be corrected if the court sets aside your conviction. The courts should forward a copy of the order setting aside a conviction to the local arresting agency (for example, the local police department, sheriff's department, etc.) because these agencies will normally not accept a copy of the order from the individual. However, this does not happen in every case, so you may have to request that the clerk of the court send a copy of the order to the local arresting agency.
You should wait several weeks after your conviction has been set aside to see if your arrest has been sealed from local arresting agency records. To do this you can request a copy of your record and see if anything shows up. There is usually a cost to get a copy of your record from the local arresting agency. If the arrest shows up, you can followup with the clerk of the court to request that a copy of the order be sent to the local arresting agency.
Offender Tracking Information System (OTIS)
OTIS is a public website that has information about individuals that are or were under the supervision of the Michigan Department of Corrections (MDOC), either by serving time in jail or prison or being placed on probation. The Michigan Legislature requires the MDOC to keep offender information on OTIS for three years after discharge.
Information is removed from OTIS only if the conviction is set aside or expunged by the sentencing court or by operation of law, or three years has elapsed since the offender has been discharged from supervision by the department. Currently, only offenders sentenced to prison have their images displayed on OTIS, and these images are not updated after the offender leaves a Michigan prison. For more information, see the MDOC-OTIS website at http://www.state.mi.us/mdoc/asp/otis2.html
If information about your conviction is on OTIS, you must send a true copy of the order setting aside the conviction to the Michigan Department of Corrections at:
Michigan Department of Corrections
4000 Cooper Street
Jackson, MI 49203