Areas of Practice
On August 23, 2021, Enrolled House Bills 4219 and 4220 were signed into law. These bills amended the current expungement laws to allow the expungement of a “first violation operating while intoxicated offense.”
Effective Date
The law took effect on February 19, 2022.
Determining Eligibility
Unlike many other misdemeanors and felonies, which will soon begin automatically being removed from criminal records, first offense DUI expungement requires judicial oversight and approval. One reason such judicial oversight and approval is necessary is because the court before which the petition seeking expungement is filed must verify the petitioner’s eligibility. By its own definition, the expungement law only allows an expungement of a “first violation operating while intoxicated offense.” It also only applies to the first violation received chronologically, even if the petitioner has received multiple “first offense”
The law elaborates on the definition of “first violation OWI” to include the following DUI first offenses:
- OWI
- Operating with Combination Alcohol/Drugs
- OWI High BAC (“Superdrunk”)
- Allowing an Intoxicated Person to Operate
- OWVI (“Visibly Impaired”)
- Minor with any BAC (“Zero Tolerance”)
- Operating with the Presence of a Controlled Substance conviction.
The following first offense DUI violations cannot be expunged:
- OWI/OWVI/Combo Causing Serious Impairment of a Bodily Function,
- OWI/OWVI/Combo Causing Death
- OWI w/Child under 16-Years (“Child Endangerment”).
- OWI Commercial Vehicle
The Expungement Law will also not allow an expungement if you have already had a first offense expunged. That means that this will only be allowed once in your lifetime. A petitioner will become ineligible if they are convicted of any misdemeanor or felony during the waiting periods described below, and a petitioner cannot have a pending criminal case while their petition for expungement is pending with the court. This means any minor criminal offense during the waiting period will reset the clock on eligibility.
Applicable Waiting Periods
There is a waiting period of either five or seven years for first offense OWI expungements. Most of the first offense OWI expungements will be available after five years, including cases where the OWI conviction was concurrent with a felony conviction, as might occur when the petitioner was also charged with felonies commonly occurring with the OWI like Fleeing and Eluding, Resisting/Obstructing, and Carrying a Concealed Weapon. The seven-year waiting period only applies to persons, whose cases involve multiple concurrent felonies, who also wish to have the multiple felonies expunged at the same time. However, it would still be possible to expunge the first offense OWI and a single felony after five years and then wait to expunge the other felonies later. It just wouldn’t make good economic sense.
All waiting periods begin to run after the petitioner has completed all jail and/or probation ordered. Consequently, a successful petition for early discharge from probation under the recently updated sentencing laws will result in a shortening of the overall waiting period, and as best practices, clients should be advised of this fact when they are sentenced for an expungement-eligible OWI offense.
An unsuccessful petition for first offense OWI expungement triggers a new three years before petitioner can apply again.
Limitations of a Successful Michigan DUI Expungement
The successful expungement of a first offense OWI will remove the conviction from the petitioner’s criminal record. Due to the large number of potential consequences that are collateral to a DUI conviction, such criminal record expungement is of tremendous benefit to the petitioner. The second biggest potential benefit to a successful first offense expungement is that the “expunged” offense cannot be used for enhancement purposes. Thus, as currently structured under all applicable law, a second OWI picked up within 7 years after a successfully expunged first offense OWI must be written as a first offense. The same is true relative to lifetime lookback under Heidi’s Law for felony.
However, it is important for a petitioner to understand the limitations that apply to a successful OWI expungement. For example, even after a successful expungement, the State of Michigan will continue to keep a non-public record of the charge and conviction. This non-public record will be available to police, prosecutors, probation officers and judges. This means, among other things, that a judge can consider a prior expunged DUI in determining that a more draconian sentence is appropriate for a new “first offense” DUI. Prosecutors can also consider a prior expunged OWI in evaluating whether to engage in plea negotiations after a subsequent OWI arrest.
Additionally, some employers and professional licensing agencies such as the Michigan Department of Licensing and Regulatory Affairs (LARA) will have access to this non-public record. Consequently, an OWI expungement may still impact the successful petitioner’s employment opportunities. This is particularly true because the OWI expungement law specifically precludes the Michigan Secretary of State from removing the expunged OWI conviction from the petitioner’s driving record. This means that many employers would still “find” the expunged OWI conviction listed on the petitioner’s driving record for at least seven years after the original conviction date. After seven years, the public driving record will continue to show the conviction as one prior reportable driving conviction.
Enhanced Driver License Sanctions Remain
Even after seven years, the expunged OWI conviction will remain visible on the petitioner’s master driving record with the Secretary of State. Consequently, if the petitioner re-offends, the Secretary of State, upon learning of same, could assess driving sanctions considering the expunged first offense OWI. In this case, the “two within seven, three within ten” paradigm still applies. The new expungement law specifically requires that even if a first offense OWI is expunged from a criminal record, it cannot be removed or expunged from the Secretary of State Record, thus keeping the conviction available for enhanced Secretary of State penalties if another offense is committed.
Once it has been determined that a petitioner is eligible based on the above, the next step will be to prepare an application to set aside the conviction. The law provides a veritable check list of items that must be completed prior to or concomitant with the petition for OWI expungement. This list can be found on SCAO court form MC227. Initially, you will need to obtain a certified copy of each conviction to be expunged. Your client must then complete the form before a notary. After that, five copies need to be made and taken to the court. The court may give you a hearing date at that time and you need to prepare and file a Notice of Hearing. Your client then needs to obtain a completed fingerprint card from a local police agency. Once that is all received, you will submit a copy with the fingerprint card and $50.00 check to Michigan State Police, to allow the Michigan State Police and FBI to do a background check to ensure that the petition is eligible. Remaining copies will be sent to the Michigan Attorney General’s Office, local prosecuting attorney, and the court. All of these steps and procedures are necessary simply to schedule the hearing to allow a Judge to consider the expungement.
Judges Are Afforded Wide Discretion and Latitude in Granting or Denying the Expungement Petition
The most difficult part of the process will be convincing the judge to grant the expungement. The expungement will be filed with the same judge who handled the OWI, unless they are retired or unavailable. The new law specifically instructs that judge to consider whether the petitioner has benefited from any of the rehabilitative or education programs that they ordered or that the petitioner voluntarily participated in. Essentially, the expungement should only be granted if the judge is convinced that the petitioner has benefitted from those programs. This is likely to mean that many judges will require proof that the petitioner has maintained abstinence from alcohol, and possibly drugs as well, for the years transpiring between the OWI conviction and the expungement petition. These factors will look familiar to practitioners familiar with driver license restoration cases. While the judge is “not constrained by the record made at sentencing,” nor required to determine continuing sobriety, they are allowed to deny the expungement if you did not avail yourself of the programs intended to promote such sobriety.