For years, a DUI was one of the only convictions you could not expunge in Michigan. Manslaughter, for example, could be expunged, but not DUI. Doesn’t make a lot of sense, does it?
Michigan lawmakers agreed. Effective February 19, 2022, the law was changed to allow for expungement of a first offense DUI. The new law covers most garden variety DUI offenses, including operating while visibly impaired, operating while intoxicated, operating with the presence of a controlled substance, operating with a high BAC (“Superdrunk”), and minor with a BAC (“Zero tolerance”). But more serious DUI offenses cannot be expunged even if they were a first offense. This includes operating a commercial vehicle while intoxicated, operating while intoxicated with a child (“Child endangerment”), operating while intoxicated causing serious impairment of a bodily function, and operating while intoxicated causing death.
Only a first DUI conviction can be expunged. Any second- or third- offense convictions cannot be expunged. And you can only ever have one DUI expunged. So, for example, if you were convicted of DUI, got it expunged, and then picked up another DUI, the second DUI (although treated as a “first” offense for other purposes) cannot be expunged.
You also have to wait 5 years from your DUI before you can apply for expungement. That 5 years begins to run at the end of your jail sentence or probation term. So, for example, if you’re convicted of DUI on August 1, 2020, and sentenced to 1 year of probation, your 5-year waiting period will begin on August 1, 2021. So you’ll be eligible for expungement on August 1, 2026. Note: any new criminal offenses will restart your 5-year waiting period.
To apply for expungement, you or your attorney needs to file an “application to set aside conviction” in the court where you were convicted of your DUI. The court will then set a hearing date (usually several weeks or months down the road) in front of the judge who handled your DUI case. If that judge has retired or is otherwise no longer at the court, a new judge will decide your application.
What will the judge consider when deciding whether to expunge my DUI? Great question. The short answer is that it depends on the judge. Judges basically have absolute discretion to grant or deny an expungement. What may persuade one judge to grant an expungement may not persuade another. Again, it all depends on your judge. Tough judges will require proof of total abstinence from drugs and alcohol since your DUI. Other judges will happily grant expungement as long as you’ve stayed out of trouble since your DUI.
Lawyers have a saying: “Know your judge.” In other words, to get a good result for a client, you need to know the habits, biases, tendencies, etc. of the judge deciding your case. This will be especially true of DUI expungements. Only time will tell what each judge will need to see before granting a DUI expungement.
If your expungement application is granted, the DUI will be officially removed from your public criminal record. But there will still be a nonpublic record that’s available to police, prosecutors, probation officers, judges, certain professional licensing agencies, and some employers. One more bit of bad news—an expunged DUI will stay on your driving record. So a deep background check will likely uncover an expunged DUI. Plus, the Secretary of State can use an expunged DUI to enhance future driver’s license sanctions. Still, for most clients, the advantages of expungement will outweigh the disadvantages.
If your expungement application is denied, you will have to wait another 3 years before you can reapply. The judge has discretion, though, to shorten that waiting period.
So although it’s not perfect, the new DUI expungement law is a step in the right direction that will allow thousands of Michiganders to clear their criminal record.