For many of our clients, having a conviction for operating while intoxicated (“OWI,” or, more commonly “DUI”) on their record is a source of embarrassment. Often the conviction was the result of a youthful mistake, and often it’s the only blemish on an otherwise clean criminal record. Can it be expunged? For decades, the answer was no. But that’s about to change. On February 19, 2022, amendments to Michigan’s expungement laws take effect that allow for the expungement of a “first violation operating while intoxicated offense.” If you’re visiting this webpage, you probably want to know if this applies to you. Here’s a primer on the new law.
Most DUI offenses are expungable, including these:
But more serious OWI offenses are not expungable, including these:
Note: only a first conviction for an otherwise eligible offense is expungable. If you have a second- or third-offense conviction, you cannot expunge it.
Another proviso is that you can only ever expunge one OWI conviction. So, for example, if you are convicted of OWI, get it expunged, and later pick up another OWI, the later OWI cannot be expunged.
In the normal course, you will have to wait 5 years before you can expunge an eligible OWI conviction. The 5 years begins to run from the day you complete you jail sentence or probation period.
Any new convictions will restart your 5-year clock. So, let’s say a couple years after your OWI you accrue a misdemeanor disturbing the peace conviction. In that case, you’ll have to wait another 5 years before you can apply to expunge your OWI conviction.
Finally, if your petition for expungement is denied, you’ll ordinarily have to wait another 3 years to petition again. A judge has discretion, though, to order a shorter waiting period.
As alluded to, it’s a judge who decides whether to grant an expungement. An “application to set aside conviction” must be filed in the same court where you were convicted and sentenced for the OWI. And the judge who presided over your OWI case—if he or she is still available—will decide at a hearing whether to grant or deny your application.
What will the judge consider? The new law says that a judge may consider whether you benefitted from any rehabilitative or education programs that were ordered as part of your probation for the OWI. The new law also says that a judge may deny expungement if you have not benefited from or availed yourself of such programs. As “may” denotes, a lot is left to the discretion of the judge.
So how likely is your judge to grant an expungement? This will depend on the predilections of your judge. In practice, most judges enjoy granting expungements, and we expect this to largely carry over to OWI expungements. Some judges, though, consider OWI offenses to be particularly heinous, and these judges may require proof of complete abstinence from drugs and alcohol before they agree to grant an expungement. Only time will tell what criteria each judge will use.
An expungement removes the conviction from your public criminal record. The state will still maintain a nonpublic record available to police, prosecutors, probation officers, judges, certain professional licensing agencies, and some employers. An expungement will also prevent the first OWI from being used for enhancement purposes. So, for example, if you have your first OWI expunged and then later get arrested for drunk driving, the charge cannot be enhanced to a second offense OWI.
One downside, though, is that an expungement does not remove the conviction from your driving record. So deep background searches are still likely to uncover your OWI conviction. Plus, the Secretary of State can still take an expunged OWI into account when assessing driver’s license sanctions.
In all, then, while the law is an improvement, it’s not perfect, and clients will have to determine for themselves the value of an OWI expungement.
If you’re interested in expunging a DUI conviction, you should consult an experienced and knowledgeable DUI expungement attorney. Contact us online or call us at our 24/7 defense hotline at 1-800-342-7896.