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May 10, 2010

How a Michigan Criminal Record will Ruin Your Career...or Not!

As a Criminal Attorney, I generally find myself involved with people at one of the worst times of their life. Since I don't handle things like Rape and Murder cases, I usually represent good, decent people who have simply made a bad decision, or otherwise failed to exercise good judgment and wound up getting caught in a bad situation. Most of my Clients face things like DUI, Possession of Marijuana, or other "victimless" crimes. In that regard, they typically, (and correctly) feel that this instance of poor judgment does not present an accurate picture of the kind of person they are, or what they're all about.

Thus, it's not unusual for me to be asked by a Client facing a DUI, for example, "How long will this stay on my Record?" Then, when I have to tell them "forever..." they usually become a bit frustrated (not at me, thankfully) and respond with something like "So that's it? I'm screwed if I want to apply for a different job?"

light-at-end3.jpgYou can insert pretty much anything, from getting a job, to getting a degree, or using that degree, or going into some occupation or other, or getting a promotion, or whatever, into that last sentence after the part where the Client says "I'm screwed..."

And although they do, at that moment, feel utterly and truly "screwed," the fact is, no matter how bad it might seem right then, it's almost never as bad as they fear.

An example from my own past is serves as a good example:

Years ago, when my wife and I were buying our first house, we had applied for a mortgage, and had been assured that we would be approved. Based on that, we found our home, and made an offer, which the seller accepted. As the days wound down, our mortgage was still not formally approved. Days came and went, and we found ourselves very near the closing date, with no mortgage approval. The closing day came, and had to be postponed. That next date came, and had to be put off, as well. The seller was freaking out, and we were freaking out. The seller told us that the deal would either have to be closed right away, or it would fall through.

I called my mortgage broker, and explained to his assistant that my deal was about to collapse unless we got that approval right away. In response, he told me that he hears that every day, and not to worry. In truth, I became angry, wondering who in the heck this guy was to tell me not to worry when I darn well knew that my deal was about to fall through! I didn't give a hoot about anybody else's situation; I just cared about mine.

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September 9, 2009

Michigan Criminal Offenses - Having a Conviction "come off" your Record

As a Criminal Defense Attorney in Michigan, I am often asked about keeping Criminal Charges off of a person's record, or having such charges "come off" their record after a period of time. This post will discuss those cases where charges can "come off" a person's record.

In two other Blog posts, we've reviewed how Drug Possession charges can be kept off of a person's record using something known as a 7411, and how almost any crime which occurs between a person's 17th and 21st birthday (including Drug Possession charges) can likewise be kept off their record using what's known as HYTA. Under each of these two mechanisms, no Public Record is made of the matter, and if the person completes whatever probationary terms the Court requires, the whole case essentially "goes away."

428206_eraser-1.jpgObviously, there are plenty of cases where a person would not be eligible for either of those opportunities (for example, the person is over 21 and the crime with which they are charged isn't Drug Possession). There is still a way to keep a person from ultimately showing a conviction in many of those cases, and it applies equally to Felonies and Misdemeanors.

Under a law known as 771.1 (formally, MCL 771.1), a person who pleads to or is found guilty of any offense which is not otherwise disqualified from such treatment, such as Murder, Treason, Criminal Sexual Conduct in the 1st or 3rd degree, or Major Controlled Substance Violations, may have that conviction automatically "come off" their record after successfully completing 1 year of Probation.

The common way of discussing this arrangement is that the charge "comes off" a person's record. And that's exactly what happens. Of course, this means that the conviction first "goes on" their record. The legal term that describes this is "Delayed Sentencing." Technically speaking, the Court puts a person on Probation for a year, and delays the imposition of any further punishment. If the person completes this year of Probation (it can be either non-reporting, or the person may be required to report) without any violations, then the court, instead of actually sentencing the person, dismisses the whole case. That means that no record of the Conviction remains.

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August 3, 2009

Expungements in Michigan - Erasing a Criminal Record

As jobs become harder to find everywhere, especially those in Macomb, Oakland and Wayne Counties, anyone looking wants to do everything to better their chances of being hired. As a Criminal Defense Attorney, I am often asked about Criminal Convictions, Criminal Records, and what to answer on a job application. Anyone who can avoid the burden of admitting to a Criminal Record is, of course, better off. More and more employers are running Criminal Background checks on current and prospective employees, and new laws in different industries (for example, Education and Health Care) prevent people from working in them if they have certain kinds of Criminal Convictions.

For those who have a Criminal Record they want erased, there are several requirements that must be met before they can even try to proceed.

Eraser.jpgFirst, the person who wants their record cleaned, called the "Applicant," must have no criminal convictions on their record except the one they are seeking to have removed. This confuses some people who may also have a past arrest for DUI or DWLS. Drunk Driving and Driving While License Suspended are Criminal Offenses. I note this because very often, when asking a person if they have any other crimes on their record beyond the one they'd like to have removed, they'll say "No, nothing more than a Drunk Driving Case a long time ago." If a person is seeking to have a Conviction removed from their record, and they also have had a DUI or a Suspended License conviction, no matter how long ago, they are ineligible. The law, while perhaps harsh, is also very clear on this point; if a person has more than one Criminal Conviction on their record, they are ineligible for an Expungement, which is legally known as a "Set-Aside of Conviction."

Second, an Applicant's conviction must be at least 5 years old.

Third, Driving-Related (and certain other very serious) Offenses cannot be Set Aside from a Criminal Record. This means that DUI and Suspended License offenses from the past cannot be removed.

If a person meets all of these criteria, then the process can begin by filing what's called an "Application to Set Aside Conviction." The process itself involves obtaining fingerprints, filing the Application with the Court where the Conviction originally occurred, receiving and attending a Hearing, and notifying multiple parties, including the State Police, the Michigan Attorney General, and the Prosecutor's Office that originally handled the case, of that Hearing. I describe the Process of "Expungement" more fully on my website.

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