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.”
Obviously, 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.
However, the fact that a person was fingerprinted and booked does not go away, and the Court does not destroy or seal its’ file. Thus, there is a Public Record of this transaction, but the person winds up without a conviction. This can be a little problematic where someone has their record checked using fingerprints, because those remnants of the charge do not go away. For inquiries by name, however, no record of the conviction will turn up. And no matter what does or doesn’t turn up, the person can honestly claim that they have no conviction for an offense handled under 771.1.
Most often, a 771.1 “Deferred Sentence” is arrived at by plea bargain. This means that the Defense Attorney and the Prosecutor agree to this deal, and the Court must then approve it.
While the outcome is not as clean as either a 7411 deal in a Drug Possession case, or a HYTA in any case where the Defendant is charged with a crime with occurred after their 17th, but before their 21st birthday, because no public record is ever made of those matters, a 771.1 deal still beats having a conviction show up years later on a public record. In other words, the person has to deal with it for that first year, but thereafter they can honestly report that they were not convicted of the offense which was the subject of the 771.1 Delayed Sentence.
Under this arrangement, the terms used by non-lawyers to describe what happens are actually more accurate than anything else. A person works out a deal which has them pleading guilty to an offense, which will then, using layman’s terms, “come off” their record in a year.