Record Expungement Act

Summary

This model policy provides for setting aside the conviction in certain criminal cases as well as the retention of certain nonpublic records and their use and prescribes the powers and duties of certain public agencies and officers.

Record Expungement Act

Section 1. Expungement of Other Convictions

(1) Except as otherwise provided in this act, a person who is convicted of 1 or more criminal offenses may file an application with the convicting court for the entry of an order setting aside 1 or more convictions as follows:

(a) Except as provided in subdivisions (b) and (c), a person convicted of 1 or more criminal offenses, but not more than a total of 3 felony offenses, in this state, may apply to have all of his or her convictions from this state set aside.

(b) An applicant may not have more than a total of 2 convictions for an assaultive crime set aside under this act during his or her lifetime.

(c) An applicant may not have more than 1 felony conviction for the same offense set aside under this section if the offense is punishable by more than 10 years imprisonment.

(d) A person who is convicted of a violation or an attempted violation of criminal sexual conduct in the fourth degree, as defined by state law, may petition the convicting court to set aside the conviction if the individual has not been convicted of another offense other than not more than 2 minor offenses. As used in this subdivision, “minor offense” means a misdemeanor or ordinance violation to which all of the following apply:

(i) The maximum permissible term of imprisonment does not exceed 90 days.

(ii) The maximum permissible fine is not more than $1,000.00.

(iii) The person who committed the offense is not more than 21 years old.

(2) A conviction that was deferred and dismissed under any of the following, whether a misdemeanor or a felony, is considered a misdemeanor conviction under subsection (1) for purposes of determining whether a person is eligible to have any conviction set aside under this act:

(a) Purchase, consumption, or possession or attempted purchase, consumption, or possession of alcoholic liquor by a minor

(b)  Admission to drug treatment court

(c) An individual is assigned to the status of a youthful trainee

(d) Possession or use of controlled substance or imitation controlled substance

(e) Parental kidnapping or a health care professional practicing under the influence

(f) Any other law or laws of this state or of a political subdivision of this state similar in nature and applicability to those listed in this subsection that provide for the deferral and dismissal of a felony or misdemeanor charge.

(3) A person who is convicted of a violation of a state law or local ordinance regarding prostitution may apply to have that conviction set aside if he or she committed the offense as a direct result of his or her being a victim of a human trafficking violation.

(4) As used in this act:

(a) “Assaultive crime” includes any of the following:

(ii) Assault or battery of an individual as defined by state law.

(iii) A violent felony as defined by state law.

(b) “Domestic violence” means the occurrence of any of the following acts by a person that is not an act of self-defense:

(i) Causing or attempting to cause physical or mental harm to a family or household member.

(ii) Placing a family or household member in fear of physical or mental harm.

(iii) Causing or attempting to cause a family or household member to engage in involuntary sexual activity by force, threat of force, or duress.

(c) “Felony” means either of the following, as applicable:

(i) For purposes of the offense to be set aside, felony means a violation of a penal law of this state that is punishable by imprisonment for more than 1 year or that is designated by law to be a felony.

(ii) For purposes of identifying a prior offense, felony means a violation of a penal law of this state, of another state, or of the United States that is punishable by imprisonment for more than 1 year or is designated by law to be a felony.

(d) “Human trafficking violation” means the occurrence of any of the following:

(i) Knowingly recruiting, enticing, harboring, transporting, providing, or obtaining an individual for forced labor or services.

(ii) Holding an individual in debt bondage.

(iii) Knowingly recruiting, enticing, harboring, transporting, providing, or obtaining an individual by any means, knowing that individual will be subjected to forced labor or services or debt bondage or knowing benefit financially or receive anything of value from participation in recruiting, enticing, harboring, transporting, providing, or obtaining an individual by any means, knowing that individual will be subjected to forced labor or services or debt bondage.

(iv) Recruiting, enticing, harboring, transporting, or providing, or obtaining by any means a minor for commercial sexual activity or forced labor or services.

(v) The victim’s resistance or lack of resistance to the actor is not relevant.

(e) “Indian tribe” means an Indian tribe, Indian band, or Alaskan native village that is recognized by federal law or formally acknowledged by a state.

(f) “Misdemeanor” means a violation of any of the following:

(i) A penal law of this state, another state, an Indian tribe, or the United States that is not a felony.

(ii) An order, rule, or regulation of a state agency that is punishable by imprisonment for not more than 1 year or a fine that is not a civil fine, or both.

(iii) A local ordinance of a political subdivision of this state substantially corresponding to a crime listed in subparagraph (i) or (ii) that is not a felony.

(iv) A violation of the law of another state or political subdivision of another state substantially corresponding to a crime listed under subparagraph (i) or (ii) that is not a felony.

(v) A violation of the law of the United States substantially corresponding to a crime listed under subparagraph (i) or (ii) that is not a felony.

(g) “Operating while intoxicated” means a violation of any of the following:

(i) Operating a vehicle on a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state if the person is operating while intoxicated.

(ii) A local ordinance substantially corresponding to a violation listed in subparagraph (i).

(iii) A law of an Indian tribe substantially corresponding to a violation listed in subparagraph (i).

(iv) A law of another state substantially corresponding to a violation listed in subparagraph (i).

(v) A law of the United States substantially corresponding to a violation listed in subparagraph (i).

(h) “Serious misdemeanor” means the occurrence of any of the following acts by a person that is not an act of self-defense:

(i) assault and battery, including domestic violence

(ii) assault; infliction of serious injury, including aggravated domestic violence

(iii) breaking and entering or illegal entry

(iv) child abuse in the fourth degree

(v) contributing to the neglect or delinquency of a minor.

(vi) using the internet or a computer to make a prohibited communication.

(vii) intentionally aiming a firearm without malice.

(viii) discharge of a firearm intentionally aimed at a person.

(ix) discharge of an intentionally aimed firearm resulting in injury.

(x) indecent exposure.

(xi) stalking.

(xii) injuring a worker in a work zone.

(xiii) leaving the scene of a personal injury accident.

(xiv) operating a vehicle while under the influence of or impaired by intoxicating liquor or a controlled substance, or with an unlawful blood alcohol content, if the violation involves an accident resulting in damage to another individual’s property or physical injury or death to another individual.

(xv) Selling or furnishing alcoholic liquor to an individual less than 21 years of age if the violation results in physical injury or death to any individual.

(xvi) operating a vessel while under the influence of or impaired by intoxicating liquor or a controlled substance, or with an unlawful blood alcohol content, if the violation involves an accident resulting in damage to another individual’s property or physical injury or death to any individual.

(xvii) A violation of a local ordinance substantially corresponding to a violation enumerated in subparagraphs (i) to (xvi).

(i) “Victim” means that term as defined by state law

(j) “Violent felony” means that term as defined by state law

Section 2. Enaction

This act is ordered to take immediate effect.