Blanco Wilczynski Criminal Law Update, by Derek Wilczynski.

Michigan Clean State Legislation Overview Summary

Summary: The State of Michigan’s Legislature has been readily working on a new set of bills to create what is now called the “Clean State” package. This package was established in October of 2020 and seeks to re-visit processes and procedures that could allow an individual to set a prior conviction aside given they meet the criteria. The changes that have been made thus far, scratch the surface of multiple procedures that exist involving paper applications, eligible offenses, and a new and improved process that would allow an individual to automatically set aside an eligible offense without filing an application. These changes will take effect on April 10^, 2021, and individuals will be able to apply under these new regulations shortly after. Please keep in mind that if there is a conviction you would like set-aside, our office would be happy to assist you with this matter.

This will be beneficial to any eligible criminal law matter on the basis that appropriate necessary technology is implemented, as well as providing room for a two-year development period before fully immersing in the automatic set-aside process.

Included below are brief descriptions to the changes that have been made within these bills, to use as a resource when researching procedures like a “set-aside” conviction and other like matters.

• Paper Application Set-aside Process – The new criteria when submitting a paper application for a set-aside matter has become much more lenient in many ways. This new Clean State Legislation increases the number of felony offenses from 1 to 3 and allows for two of those matters to be for an assaultive crime. In previous years, prior to the 2020 amendments, only one felony and 2 misdemeanor convictions were eligible to be set-aside. The offenses included to be eligible for this set-aside process were much more stringent.
• Offenses That Cannot Be Set Aside – A new section was added to this statute within these bills which places new restrictions on specific violations committed under certain criteria. This criterion includes:
  • A felony or attempted felony in which the punishment of said felony resulted in life imprisonment.
  • Specific offenses in which exploitation and delinquency of minors is present.
  • Violation or attempted violation of fourth-degree criminal sexual conduct (CSC) that falls within the time span of January 12, 2015 or after that date.
  • Specific traffic offenses like operating while intoxicated, and/or operating a commercial vehicle, or any other traffic violation that includes injury or death.
  • A domestic violence felony, if the person applying for the set-aside has a previous misdemeanor for domestic violence.
  • Human Trafficking Offenses
• “One Bad Night” (Setting Aside Multiple Offenses Within 24 Hours) – This section treats all felony or misdemeanor convictions as one felony or one misdemeanor if they were committed within a twenty-four-hour time frame. The limitations to this new amendment include:
  • Any crime committed that is considered to be an assaultive matter.
  • A crime where ownership and utilization of a dangerous weapon is involved.
  • A crime with a penalty that is greater than or equal to 10 years of imprisonment.
  • An out of state crime where if it had been attained in the State of Michigan, it would be considered an assaultive crime.
• Time for Filing Set-Aside Application
  • An application for a single felony conviction may only be set aside seven years following the completion of any term of imprisonment, discharge from parole, completion of probation, and the imposition of a sentence. If any or all are applicable, then whichever event occurs last, will be the commencement in which the seven years will begin.
  • An application for one or more significant misdemeanor judgements or one felony judgement to be set aside, may only be filed five or more years after the event that occurs last: any term of imprisonment, discharge from parole, completion of probation, and the imposition of a sentence.
  • One or more misdemeanor judgements can only be applied to be set-aside three or more years following the event that occurs last: the imposition of a sentence, a completion of probation, or the completion of any term of imprisonment.
• Non-Public Status of Set Aside Convictions – this amended statute considers the use of non-public records to act as a factoring decision about certain charges, plea offers, and sentencing.
  • Subsection (2) of statute MCL 780.623 specifies that a nonpublic record can be used as a factoring decision by the court, a law enforcement agency, prosecuting attorney, or the attorney general in determination of specific charges, plea offers, and/or sentencing.
• Treatment of Convictions That Are Set Aside –
  • Specifically states that an act does not mitigate the responsibility to supply funds owed to the victim as restitution.
  • A set – aside offense is under no requirement to be used as evidence regarding negligent hiring, admission, or licensure against the offender.
  • Applicant must be the individual who seeks to get his/her offense set aside, no other party involved can submit the application.
• Marihuana Related Set Aside – This section creates a new set-aside process for specific offenses regarding marihuana.
  • An application for one or more misdemeanor charges relating to a marihuana offense may be submitted to set-aside the conviction(s).
  • An applicant for a marihuana – related misdemeanor happening after the date of December 6, 2018 will be heavily considered as it would not have been considered a crime.
  • The court is required to set a hearing for this matter no later than 30 days from the admission of the prosecuting attorney’s answer.
  • The court is required to submit an order approving or denying the application on or before the 14-day mark beginning at the date of completion of the hearing.
  • The convicting court is required to set-aside the conviction(s) within a time frame of 21 days and provide a copy of the set-aside to the applicant, along with the arresting agency, and prosecuting attorney.
• Number of Offenses to Set-Aside –
  • Statute now states that a person can only set aside one conviction unless it falls within a misdemeanor or marihuana charge.
• Automatic Set Aside – this statute states that Michigan State Police and courts may automatically set-aside specific convictions without the filing of a formal application.
  • Requires a two-year mandatory development period before it is ready to be used.
  • A felony may be subject to automatic set-aside after 10 years of completion of any term of imprisonment or the imposition of the sentence if the felony is meeting the criteria to be eligible.
  • Michigan State Police will be required to automatically set aside all 93-day misdemeanors following a 7-year period after the imposition of a sentence.
  • Convictions that may not be set aside include:
    • An assaultive crime;
    • A serious misdemeanor;
    • A crime of dishonesty;
    • An offense that in which the punishment results in 10 or more years in prison;
    • A crime which includes a minor, vulnerable adult, serious injury, and/or death;
    • Along with any conviction that relates to the exploitation of an individual or human trafficking.
  • Reinstatement of Convictions –
    • A set-aside conviction may be reinstated if it was not properly set-aside or if the court decides that the applicant has not made their best effort to pay funds required by ordered restitution.
  • Michigan Set – Aside Fund –
    • There is now a financial aspect to the set-aside process to fund the development of the new automatic set-aside process and other like projects.