What Convictions Can You Expunge (Set Aside) with an Application?

In some limited situations, you can ask the judge to count multiple convictions as one. To be eligible for this, the convictions must have resulted from the same set of actions within a 24-hour period. None of the convictions can be for:

• An assaultive crime (read “Assaultive Crimes” below to learn more) 
• A crime with a maximum sentence of 10 or more years’ imprisonment
• A crime involving the use or possession of a dangerous weapon

A dangerous weapon is any of the following:

• A loaded or unloaded gun, whether it works or not
• A knife, stabbing instrument, brass knuckles, blackjack, club, or other object specifically designed as a weapon
• An object that is likely to cause death or bodily harm when it is used as a weapon or carried as a weapon
• Something that is used or made to lead a person to believe it is one of the weapons listed above

If you have multiple felony convictions that qualify for the “one bad night rule,” those convictions will only count as one felony. For example, if you have four total felony convictions, but two of them qualify under the one bad night rule, you may still be eligible to set aside your convictions because your total felony convictions will be counted as three instead of four.

If you are not sure whether your convictions qualify for the one bad night rule, you may want to speak with a lawyer before you file your application. Read "Finding a Lawyer" at the bottom of this article for more information. 

You cannot set aside more than two convictions for assaultive crimes in your lifetime. In general, assaultive crimes are crimes that involve physically hurting another person. An assaultive crime includes any of the following:

• A violation described in MCL 770.9a
• A violation of sections MCL 750.81 to 750.90h
• A violation of section MCL 750.110a, MCL 750.136b, MCL 750.234a, MCL 750.234b, MCL 750.234c, MCL 750.349b, or MCL 750.411h, or any other violent felony
• A violation of a law of another state or of a political subdivision of this state or of another state that substantially corresponds to a violation described in any of the statutes mentioned above

Sometimes a judge may defer (delay) entering an order of guilt while putting a defendant on probation. The judge may say that if the defendant successfully completes probation, the conviction will be dismissed. A dismissal in this instance means the conviction will not go on the defendant’s public record.

If you have any convictions that were deferred and dismissed, they will count as misdemeanor convictions when determining if you are eligible to set aside a conviction. This is also true if the deferred or dismissed conviction was a felony. You must list these in your application.

It can be difficult to find exact information about these convictions since they should not be part of your public criminal record. You must contact the convicting court to get information about this type of conviction for your application. Because this information is not public, court staff can only give you this information. You will likely need to prove your identity. A photo ID should work, but you can ask the court clerk about this when you call.

You cannot have more than one felony conviction for the same offense set aside if the possible punishment for that offense is more than 10 years in prison. This does not mean that you had to have been sentenced to 10 years in prison. It only means that the conviction carries a possible sentence of over 10 years.

If you have two convictions for different offenses that carry a possible punishment of more than 10 years, it’s possible you can set both of them aside.

If you don’t know if your possible punishment was for more than 10 years in prison, you need to find out the law or statute under which you were convicted. First, look at your Internet Criminal History Access Tool (ICHAT) report under the “judicial segment,” or on your certified record of conviction. The statute will start with “MCL” and then be followed by numbers. For example, “MCL 780.621.”

Then, go to the Michigan Legislature’s website to look up the statute. On the legislature’s website, type the MCL number from your ICHAT into the “MCL Section Number(s).” Read the statute to find out the length of time a person may be imprisoned. It is often found towards the end of the statute. If the conviction carries a possible sentence of over 10 years, you cannot set aside a second felony conviction for the same offense.

Most misdemeanors have a maximum jail or prison sentence of one year or less. However, some misdemeanors allow for imprisonment for more than one year. These convictions are called “high misdemeanors.” The Michigan Attorney General or local prosecutor will likely argue that these misdemeanors should be counted as felonies when setting aside convictions.

If one of your convictions is a high misdemeanor, you may want to speak with a criminal lawyer who has experience handling these types of cases before you file your application. Use the Guide to Legal Help to find lawyers in your area.

If you are not sure if your conviction is a high misdemeanor, you need to find out the law or statute under which you were convicted. First, look at your Internet Criminal History Access Tool (ICHAT) report under the “judicial segment,” or on your certified record of conviction. The statute number will start with “MCL” and then be followed by numbers. For example, “MCL 780.621.”

Then, go to the Michigan Legislature’s website to look up the statute. On the legislature’s website, type the MCL number from your ICHAT or certified record into the “MCL Section Number(s).” Read the statute to find out the length of time a person may be imprisoned. It is often found towards the end of the statute. If the misdemeanor statute allows for imprisonment for more than one year, it will likely be considered a “high misdemeanor”. If the statute doesn't specifically say a conviction can be punishable by more than one year in prison, it is likely a regular misdemeanor.

The new law allows for someone to set aside certain traffic convictions. Not all traffic convictions can be set aside.

The following convictions cannot be set aside:

• Any traffic offense committed by someone who has an operator's or chauffeur’s license while that person was operating the commercial motor vehicle
• Any traffic offense that caused injury or death

On February 19, 2022, new laws went into effect that allow some first-time offenders with operating while intoxicated (OWI) convictions to set aside their conviction five years after their probation period ends. Only one OWI conviction can be set aside in a person's lifetime. Under the new OWI laws, the following convictions are eligible to be set aside:

• Operating a vehicle with a blood alcohol content (BAC) of .08 or more
• Operating a vehicle while visibly impaired by alcohol or other controlled substance
• Operating a vehicle under the age of 21 with a BAC of .02 or more
• Operating a vehicle with any amount of cocaine or a Schedule 1 controlled substance

If a judge signs an order setting aside a conviction for a traffic offense, in most cases it will not affect your driving record. However, if the judge sets aside an OWI conviction under the new law, this will not remove or expunge the conviction from your driving record with the Secretary of State.

No matter what type of traffic conviction you have set aside, you may still have to work with the Secretary of State to get your driver’s license restored. To learn more, read Restoring Your Driver’s License.

If you have misdemeanor marijuana convictions, you may be eligible to set them aside without a waiting period. Convictions may be set aside if the offense would not have been a crime on or after December 6, 2018. This is the date that recreational marijuana became legal in Michigan.

The judge will assume that violations of the following misdemeanor marijuana laws would not have been crimes on or after December 6, 2018, and can be set aside:

• MCL 333.7403 (possession)
• MCL 333.7404 (use)
• MCL 333.7453 (sale of paraphernalia)
• A local ordinance (law) that is substantially the same as any of the statutes above

This presumption can be rebutted (disproved) if the prosecutor proves that the activity would have been a crime if committed on or after December 6, 2018. The prosecutor would do this by filing an answer to the application. The burden of proof for the prosecutor in these cases is a preponderance of the evidence. The prosecutor has 60 days from the service date of the application to file their answer and serve a copy on all parties.

If the prosecutor does not file an answer within 60 days, the convicting court must enter an order to set aside the convictions within 21 days without having a hearing on the application. The court will serve a copy of the order on all the parties.

If the prosecutor does file an answer, the convicting court must schedule a hearing within 30 days of receiving the answer. The court must serve a notice of hearing on you, the applicant.

At the hearing, the prosecutor must prove by a preponderance of the evidence that the conduct that led to the convictions would have been a crime on or after December 6, 2018. You are not required to present evidence that your conviction was based upon conduct that would not constitute a crime. However, it could sometimes be helpful to present evidence. The rules of evidence do not apply to this type of hearing. This might make it easier for you to present evidence that could help your case without needing a lawyer’s help.

After the hearing, the judge will enter an order denying or granting the application within 14 days. Go to How to Set Aside an Adult Misdemeanor Marijuana Conviction for step-by-step instructions on how to set aside your misdemeanor marijuana conviction.

If you were convicted of certain prostitution offenses while you were a victim of human trafficking, you may be eligible to have those convictions set aside without having to wait. Special rules allow you to set aside more than one of these convictions, and there is no waiting period before you can file your application.

You may want to contact a lawyer in your area to help you with this by using the Guide to Legal Help. If you have low income, your local legal aid program may be able to help you free of charge.

Convictions for the following offenses cannot be set aside:

• A violation, or an attempted violation, of engaging in child sexually abusive activity or producing, distributing, or possessing child sexually abusive material, MCL 750.145c
• A violation, or an attempted violation, of using a computer to solicit a minor, MCL 750.145d
• A violation, or an attempted violation, of an assault with the intent to commit criminal sexual conduct (CSC) involving penetration, MCL 750.520g
• A violation, or an attempted violation, of first or second degree child abuse, MCL 750.136(b)(2) or 750.136(b)(3)
• A violation, or an attempted violation, of child abuse in the presence of another child, MCL 750.136d(1)(b) or 750.136d(1)(c)
• A second or subsequent conviction for Operating While Intoxicated 
• A felony conviction for domestic violence when you have a previous misdemeanor conviction for domestic violence
• A violation of human trafficking, MCL 750.462A to 750.462J and 750.543A to 750.543Z
• Any felony offense that is punishable by life in prison (even if your actual sentence was shorter)
• Any traffic offense committed by someone with an indorsement on their operator's or chauffeur's license to operate a commercial motor vehicle that was committed while the individual was operating the commercial motor vehicle or was in another manner a commercial motor vehicle violation
• Any traffic offense that causes injury or death
• A violation, or an attempted violation, of first degree Criminal Sexual Conduct (CSC), second degree CSC, or third degree CSC, MCL 750.520b, 750.520c, or 750.520d
• A conviction for fourth degree CSC, MCL 750.520e, on or after 01/12/15 cannot be set aside.
• A conviction for fourth degree CSC convictions prior to 01/12/15 can be set aside so long as you have no other convictions, other than up to two minor offenses. A minor offense is an offense for which
  • The maximum term of imprisonment is not more than 90 days
  • The maximum fine is not more than $1,000, and
  • The person who committed the offense is not more than 21 years old.

The waiting period is different for regular misdemeanors and "serious misdemeanors." Not all serious misdemeanors can be set aside. 

A serious misdemeanor is any of the following offenses:

• Assault or battery, including domestic violence, MCL 750.81
• Assault or infliction of serious injury, including aggravated domestic violence, MCL 750.81a
• Breaking and entering, or illegal entry, MCL 750.115
• Fourth degree child abuse, MCL 750.136b
• Contributing to the neglect or delinquency of a minor, MCL 750.145
• Using the internet or computer to make a prohibited communication, MCL 750.145d
• Intentionally aiming a firearm without malice, MCL 750.233
• Discharge of a firearm intentionally aimed at a person, MCL 750.234
• Discharge of a firearm intentionally aimed at a person that causes injury, MCL 750.235
• Indecent exposure, MCL 750.335a
• Stalking, MCL 750.411h
• Selling or giving alcohol to someone under 21, if the violation results in physical injury or death to the person, MCL 436.1701
• Any conviction similar to one of the ones listed above
• Any conviction listed above that was reduced (This means if your misdemeanor conviction was originally a charge for a serious misdemeanor but later reduced, the waiting period will be five years, not three, for that conviction.)