REVISE CRITERIA FOR EXPUNCTION

OF CRIMINAL RECORD

House Bill 4405

Sponsor:  Rep. Andy Coulouris

Committee:  Judiciary

Complete to 5-12-09

A SUMMARY OF HOUSE BILL 4405 AS INTRODUCED 2-24-09

The bill would allow, under certain circumstances, a person to apply to have a felony conviction expunged even if he or she had also been convicted of one or two misdemeanor offenses, and allow a person convicted of not more than two misdemeanor offenses to apply for the expunction of either or both misdemeanors. 

Public Act 213 of 1965 provides a mechanism by which a person who has only one criminal conviction (a felony or a misdemeanor) can apply to the court for an order setting aside the conviction.  However, a conviction cannot be set aside for a felony that is punishable by life imprisonment (or an attempt to commit such a felony), for a conviction for a violation or attempted violation of the criminal sexual conduct (CSC) statutes (with the exception of CSC in the fourth degree), or for a traffic offense.

House Bill 4405 would amend Public Act 213 (MCL 780.621, 780.623, and 780.624) to instead allow a person to file an application with the convicting court for an order setting aside one or more convictions as follows:

·                    A person convicted of one felony offense and not more than two misdemeanor offenses could petition to set aside the felony offense. 

·                    A person convicted of not more than two misdemeanor offenses and no other felony or misdemeanor offenses could apply to have either or both of the misdemeanor convictions set aside. 

For purposes of eligibility only under either of these provisions, a traffic offense would not constitute a misdemeanor, except that a violation of the drunk driving laws (including operation of a commercial vehicle) or a substantially corresponding local ordinance, law of an Indian Tribe, state law, or federal law would constitute a misdemeanor. 

(For instance, a person who had had been convicted of one felony and three misdemeanors with one of the misdemeanors being a traffic offense that was not related to driving under the influence or while impaired, would be eligible under the bill to petition to have the felony set aside.  In another example, a person who had no felony convictions and two misdemeanor convictions, one for driving while intoxicated or impaired, could petition to have the non-drunk driving conviction expunged. A person having three misdemeanor convictions, one of which was a non-drunk driving traffic offense and the other two being non-traffic offenses, could petition to have either or both of the non-drunk driving convictions expunged; however, if the third misdemeanor involved a drunk-driving conviction, the person would be ineligible to have any of the misdemeanors set aside.)

"Indian tribe" would mean an Indian tribe, Indian band, or Alaskan Native Village recognized by federal law or formally acknowledged by a state.

Definition of misdemeanor and felony.  The bill would define a "misdemeanor" as being a violation of a state, federal, tribal penal law that is not a felony; an order, rule, or regulation of a state agency that is punishable by imprisonment for not more than one year or a fine that is not a civil fine, or both; a local ordinance in this state that substantially corresponds to certain misdemeanors listed in the bill that is not a felony; a violation of the law of another state or political subdivision of another state substantially corresponding to listed Michigan misdemeanors that is not a felony; and a similar violation of federal law.

"Felony" would mean a violation of a state or federal penal law punishable by imprisonment for more than one year or expressly designated by law to be a felony.  However, the bill specifies that this definition would not apply to the eligibility criteria for applying to have a felony conviction set aside.    

When felonies cannot be set aside.  The bill would keep the current exclusion for expunction of a felony offense punishable by life imprisonment (which includes CSC in the 1st degree); for convictions for CSC in the 2nd or 3rd degree or assault with the intent to commit CSC in the 1st, 2nd, or 3rd degree; and for traffic offenses.  However, the bill would add to the list of offenses that could not be set aside, a conviction that is a felony involving domestic violence if the person had a prior misdemeanor conviction for domestic violence.  (This provision would pertain to convictions for crimes in which the victim is a spouse, a former spouse, an individual with whom the person has or has had a dating relationship, or an individual residing or who had resided in the same household as the person.  "Dating relationship" would mean that term as defined in Section 2950 of the Revised Judicature Act.)

When misdemeanors cannot be set aside.  If a person was convicted of more than one misdemeanor for any of the following crimes then a conviction for violating or attempting to violate any of the following could not be set aside: 

** A crime in which the victim was a spouse, a former spouse, an individual with whom he or she has had a child in common, an individual with whom he or she has or has had a dating relationship, or an individual residing or who had resided in the same household. 

** A conviction for assault and battery (including a domestic violence-related assault and battery); aggravated assault; misdemeanor stalking; threats or assaults against a person who works for the Department of Human Services, known as Lisa’s Law; various assaultive crimes against a pregnant woman; indecent exposure; and child abuse.

When expungement does not apply.  A person could not apply to set aside, and a judge could not set aside, any conviction if a person had been convicted of two misdemeanors and in addition to those convictions had had one or more additional actions previously dismissed under a number of statutory provisions that allow for the deferral and dismissal of charges. 

These provisions include Section 703 of the Michigan Liquor Control Act (purchase, possession, and consumption by a minor); Section 1070(1)(B)(i) of the Revised Judicature Act (completion of drug treatment program); sections of the Code of Criminal Procedure dealing with assignment of youthful trainees; assault on a spouse, former spouse, individual with a child in common, person in a dating relationship, or household resident; and cases of delayed sentencing; Section 7411 of the Public Health Code relating to first time drug offenses; Section 350a of the Michigan Penal Code, which deals with the taking or retaining of a child by an adoptive or natural parent with the intent to conceal from another with parenting rights; Section 430 of the Penal Code, which deals with health professionals working under the influence of alcohol or controlled substances; and a conviction of any other law of this state or of a political subdivision of this state similar to these that provides for the deferral and dismissal of a felony or misdemeanor charge.

Time limitations.  Currently, an application to set aside a conviction can be made five years after the sentence is imposed or five years after completion of any term of imprisonment imposed for that conviction, whichever is later.  House Bill 4405 would revise the time limitations.  Under the bill, to set aside either a felony or misdemeanor conviction, a person would have to wait until at least five years after the imposition of the sentence, the completion of the probation or discharge from parole imposed for that felony or misdemeanor, or at least five years after completing imprisonment for that conviction, whichever occurred later. 

If a petition to expunge a conviction is denied by the convicting court, the person must wait at least three years from the date of the denial before filing another petition concerning the same conviction or convictions.

Application for expunction.  The act requires certain information to be included on the application for setting aside a conviction.  The bill would make several revisions to these requirements; most are minor.  However, the statement that the applicant has not been convicted of an offense other than the conviction or convictions sought to be set aside as a result of the application would have to include any nondisqualifying convictions described in the bill.  The bill would also require the applicant to include a statement listing all actions pertaining to discharge and dismissal enumerated in the bill that were initiated against the applicant but have been dismissed.

Fingerprints.  The bill would require an applicant to submit just one complete set of fingerprints to the Department of State Police instead of two as currently required.  (This change reflects the current practice of the department to send a copy of the fingerprints to the Federal Bureau of Investigation via electronic transmission.  Therefore, two sets are no longer needed.) 

Repealer.  The bill would repeal Section 4 of the act which provides that only one conviction can be set aside.

Retention of Safeguards.  The bill would not affect safeguards currently contained in the law.  A copy of the application for expunction would still have to be served on the attorney general and the office of the prosecutor who prosecuted the crime.  The attorney general and local prosecutor would still have an opportunity to contest the application.  A notice of the application would still have to be sent to the victim of an assaultive crime, and he or she could still appear at any proceeding concerning that conviction and could still make written or oral statements.  The bill would clarify that it would be "at the court's discretion" to enter an order setting aside the conviction or convictions, but the court would still have to determine that the expunction was warranted and consistent with the public welfare.

FISCAL IMPACT:

The bill would have little to no fiscal impact to the Judiciary.  Although there could be increased administrative time to process applications, it is not believed that this would increase costs to the state or local units of government. 

The bill would have an indeterminate fiscal impact on the Department of State Police.  The cost for processing fingerprints is $54, and this bill would change the requirement for an applicant from submitting two sets of fingerprints to submitting one set of fingerprints to the State Police.  It is unknown how many applicants would submit their fingerprints to the State Police for this purpose.  This bill also requires the State Police to forward an electronic copy of the applicant's fingerprints to the FBI and this could generate some staff costs and other administrative costs.   

BACKGROUND INFORMATION:

The issue of expanding eligibility for expunction of criminal convictions has been discussed for many years.  Similar legislation was introduced in the previous three legislative sessions.  House Bill 4327 in the 2005-2006 session and House Bill 5493 in the 2003-2004 session were passed by the House but failed to see action in the Senate.  Last session, House Bill 5213 was reported from committee but died on the House floor.

                                                                                           Legislative Analyst:   Susan Stutzky

                                                                                                  Fiscal Analyst:   Ben Gielcyzk

                                                                                                                           Jan Wisniewski

■ This analysis was prepared by nonpartisan House staff for use by House members in their deliberations, and does not constitute an official statement of legislative intent.