New Expungement Law Allows OWI First Offense to Be Set aside in Michigan

New expungement legislation signed by the Governor will allow for expungement of conviction for a first violation of operating while intoxicated (OWI) if certain conditions are met.  House Bills 4219 and 4220 were signed by the Governor on Tuesday, August 24, 2021.  There has been advocacy for years working to allow people to expunge traffic offenses.  There had been changes to the expungement law that went into effect in April 2021, but it didn’t include the ability for people who have a one-time OWI offense to apply to have it set aside.

The new legislation makes certain convictions eligible for expungement:

1. Driving with a bodily alcohol content at or above 0.08;
2. Driving under the influence of any amount of schedule 1 controlled substances or cocaine;
3. Driving while visibly impaired due to any substance;
4. Allowing an Intoxicated Person to Drive
5. Driving while under the age of 21 years of age with a bodily alcohol content of 0.02 or higher.

House Bill 4220 makes it clear that the court reviewing the application to set aside a conviction may “consider whether or not the petitioner has benefited from rehabilitative or educational programs…and may deny the petition if it is not convinced that the petitioner has either availed himself or herself of rehabilitative or education programming or benefited from rehabilitative or educational programming he or she has completed.”

There has been much discussion amongst the public and legal community regarding whether or not the OWI conviction that is set aside can be used to enhance a future OWI charge.  If a petitioner is granted the expungement the OWI conviction is removed from the petitioner’s criminal history record.  The new legislation makes it clear that the traffic offense will not be removed from the petitioner’s Secretary of State (SOS) driving record.  This would seem to mean that law enforcement officials and prosecuting officials could use the OWI conviction that was expunged from the criminal history record, to enhance a future OWI charge, as the offense would remain on the driving record maintained by SOS that both officials have access to.

The new legislation does not apply to offenses that caused injury or death, child endangerment or occurred when a person with an indorsement to operate a commercial motor vehicle was operating a commercial motor vehicle.

One can petition for expungement three to five years after the latest of the following events: date of sentencing, completion of any term of incarceration, or completion of a term of probation.  People may start applying for expungement of OWI convictions beginning February 19, 2022.  If one obtains another conviction or has a pending criminal case during the waiting time this could cause one to be disqualified or have to wait longer to be eligible for expungement.

The Bills may be found via the links below:

http://www.legislature.mi.gov/documents/2021-2022/publicact/pdf/2021-PA-0078.pdf

http://www.legislature.mi.gov/documents/2021-2022/publicact/pdf/2021-PA-0079.pdf