Legal Question in Criminal Law in Michigan

Federal vs State law on Expungement

Dear Sir

I was arrested and fingerprinted for petty larceny in a Michigan store on Dec 2001.I was convicted of Disorderly Conduct and a fine of $ 300 including the court costs which I paid(no probation).Two and a half years on, a U.S. citizen has proposed to marry me.I have 2 questions:

1- I will qualify for expungement after 5 years. Halfway through, can I submit a petition to the court requesting dismissal of the case and will the court consider it. Will the court consider a request for the concealment of the records. For my post doctoral education in U.S.(have passed admission examinations with highest scores)I must fill up forms that contain a question regarding past record of arrest and conviction. If I cannot get my case dismissed or concealed I will have no future in US.

2- A bill named Second Chance for Ex-Offenders Act of 2003 (Introduced(Introduced in House)HR 1434 IH provides that a first time offender will become eligible for expungement after one year of community service (at the discretion of the court). Can I benefit from this bill if it is passed. My understanding is that a Federal Law prevails over a State Law.

I need to hear your views urgently and I thank you very much for your help.


Asked on 4/27/04, 9:34 am

1 Answer from Attorneys
Neil O'Brien Eaton County Special Assistant Prosecuting Attorney

Re: Federal vs State law on Expungement

In my opinion, the federal law would apply to federal court convictions only. That federal law would not "trump" Michigan's laws regarding expungment (setting aside a conviction). Only a state can create a process (if it wants) to give a convicted defendant a process whereby a 'dirty' record can get 'cleaned up'. Such a process is not required by any constitutional or inalienable right. It's the product of the state legislature's grace, and the discretionary power given to the state court by that legislature.

We answer a lot of expungment questions here. Search the Michigan Criminal Law database here for "expungment" to see past questions and answers. In short, you'll see that it only applies if (1) 5 years have already passed since the time your criminal case is over (ie, your jail term is served, your probation is closed, etc) ... it is not necessarily 5-years-after-the-conviction-date; (2) the conviction for which you are requesting an expungment is the ONLY criminal conviction (misdemeanor or felony) you have EVERY HAD. If you have a "prior conviction" or you have a more recent criminal conviction, you do not qualify for expungment. Further, most courts say that if your original conviction was for more than one count/charge, then you cannot expunge anything, either.

I am unaware of any method for you to come in "half way through" your 5 year waiting period in order to, effectively, get an 'early expungment'.

Setting aside a conviction is somewhat technical. You have to do it the right way, file the right forms, jump through the right hoops, etc. I recommend that you consult with an attorney who does this work and get his/her Official opinion.

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Answered on 4/30/04, 3:08 pm


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