Legal Question in Criminal Law in Michigan

If the conviction was set aside under MCL 333.7411 several years ago and the court advised MSP records that it was now a non-public record (i.e., no longer a "conviction"), then it should not be viewable on a public search of her criminal history.

A non-public record of the matter is still on her "full" CCH so police, prosecutors and courts can see that she's previously had a charge set aside under 7411. But that's not supposed to be for public disclosure, and violations of LEIN (Law Enforcement Information Network) laws can be criminal offenses ... probably misdemeanors. If the school superintendent got a cop buddy to give him a non-public record, then that may well be a LEIN violation that could result in a criminal charge, could result in an administrative sanction against the police agency whose LEIN terminal was used illegally, etc.

Police, prosecutors and courts have to use a special query code to get back information about non-public cases like your daughter's 7411-resolved drug case. So, someone ran one of those to get that information, which was apparently passed on. That ought to be traceable.

I recommend that, if you want to have this pursued, you contact the nearest Michigan State Police post (NOT the local police agency where the violation may have occurred) to investigate this. LEIN use can be audited, meaning that some computer record exists showing when someone ran your daughter's CCH, what department/agency did it, what terminal was used, what kind of check was done, and who was logged in to do that query. That may be a start in finding out who ran the criminal history check. Then the investigation may link that query up to how it eventually got to the superintendent.

Ultimately, a prosecutor may have to decide whether a crime occurred, and whether a charge should be issued. But all the facts have to be investigated first.

The legislature enacted 333.7411 to give courts an opportunity to extend some 'grace' to people who pick up use or possession drug charges (not manufacturing, delivery, possession with intent to deliver or other trafficking crimes ... precisely to give people like your daughter a chance to have a clean start after proving herself by successfully completing probation. It's wiped off her public record, and court files are essentially sealed. When someone gets this information through a back door, that public policy is thwarted. Here, your daughter lost the protection that 7411 and the judge's orders gave her because someone may well have violated the law. These are reasons for this to be investigated further.

I cannot opine about the FBI criminal history database. I know that the FBI has its own computers that keep criminal history information, but don't know if / when / how their records are updated or affected by a change in the data ... like what happens when your daughter's conviction is set aside under 7411. Once the FBI computer gets her in its database, she is assigned an FBI number forever, which is a red flag. But, peeling away the layers to see why she has the number, what the criminal matter was, etc. is another animal. The MSP folks who look into the local LEIN violation matter may be able to explain the FBI twist for you.

As for your daughter being "dishonest" ... if the application asked about any prior "convictions", when she answered "None" TRUTHFULLY because a 711 discharge results in the matter no longer being a "conviction". But, if the application asked about "arrests" or "charges", then a "None" answer would not have been accurate. The people who write the questions are stuck with the terms of their questions just like your daughter is stuck with her answers, IMHO.

Your daughter may want to consult with or hire an emplyment law attorney to review her options with the school district or even the department of education (if this matter somehow affects her teaching certificate). If the district takes action against her because the superintendent obtained information illegally, then she might have a defense. The Dept of Education has a Licensing division that may be able to answer more questions.

I agree with the excellent answer/explantion provided by Prosecutor Neil O'Brien above. Which school? Is this a public or private school? Daniel Hajji 248.865.4700