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OWI Expungement Attorneys in Michigan

In 2021, Governor Gretchen Whitmer signed into law amendments to Michigan’s expungement statutes to allow for expungement of a “first violation operating while intoxicated offense.” Before these amendments, operating while intoxicated “OWI” convictions could not be expunged. Given that much more serious crimes are eligible for expungement (manslaughter for example, is expungable), this is a commonsense change that will allow thousands of Michiganders to clear their records.

The amended statutes take effect February 19, 2022. To determine if you’re able to take advantage of the new law, you should consider (1) eligibility, (2) waiting period, (3) procedure, and (4) the effect of an expungement. Let’s look.

OWI Expungement Eligibility

Under the new law, a first conviction for any of the following is expungable:

  • Allowing an intoxicated person to operate
  • Minor with a BAC (“Zero tolerance”)
  • Operating with a high BAC (“Superdrunk”)
  • Operating with a combination of drugs and alcohol
  • Operating while intoxicated (OWI)
  • Operating while visibly impaired (OWVI)
  • Operating with the presence of a controlled substance

Only a first conviction for one of these offenses is expungable. Any second- or third-offense convictions are not expungable.

The following convictions cannot be expunged even if they’re a first conviction:

  • Operating while intoxicated causing death
  • Operating while intoxicated causing serious impairment of a bodily function
  • Operating while intoxicated with a child (“Child endangerment”)
  • Operating a commercial vehicle while intoxicated

The new law also includes a once-in-a-lifetime limitation, meaning that you can only ever have one OWI offense expunged.

Waiting Period to Expunge Your OWI

The waiting period before you can apply to have an OWI expunged is 5 years. That waiting period begins at the conclusion of your jail sentence or probation period. So, for example, if you were convicted of OWI on January 2, 2017, and sentenced to 2 years of probation, your 5-year waiting period will begin January 2, 2019, meaning you will be eligible to apply for expungement on January 2, 2024.

Any new convictions after your OWI will reset your waiting period. So, taking the example from the previous paragraph, if you are convicted of another crime on January 2, 2023, the 5-year waiting period to expunge your OWI will restart.

If your expungement is denied, you’ll have to wait another 3 years before you can reapply, unless the court sets an earlier eligibility date.

Procedure to Expunge Your OWI Conviction

An expungement petition (formally called an application to set aside conviction) is filed in the court where you were originally convicted. A hearing will then be held before the judge who presided over your OWI case (if he or she is still available; if not, a successor judge will decide the petition).

The law vests judges with enormous discretion in deciding expungement petitions. Presented with identical facts, one judge might grant the petition while another judge might deny it. Each judge will likely develop their own “strike zone” for deciding OWI expungement petitions. The most demanding judges will likely make total abstinence from drugs and alcohol a prerequisite for expungement.

The language of the law itself give minimal guidance on what a judge should consider. The law states that a judge may consider whether you benefitted from any rehabilitative or education programs you completed as part of your probation. The law also states that a judge may deny an expungement if you have not benefited from or availed yourself of rehabilitative or education programs. Neither of these provisions is a hard and fast rule. Again, over time, each judge will develop their own benchmarks.

Effect of Expungement

If your OWI conviction is expunged, it will be removed from your public criminal record. A nonpublic record will still be maintained by the state and made available to police, prosecutors, probation officers, and judges. Some professional licensing agencies and employers will also be able to access the nonpublic record.

An expunged OWI also cannot be used to enhance a subsequent charge. For example, if your first OWI is expunged and you’re later arrested for drunk driving again, you cannot be charged with a second offense OWI.

But, importantly, an expunged OWI will remain on your driving record. A thorough background check will likely expose the OWI conviction. What’s more, the Secretary of State may use the expunged OWI conviction to enhance future driver’s license sanctions.

Therefore, although an OWI expungement has considerable value, it’s not necessarily a cure all solution.

Contact Our OWI Expungement Attorneys

You should consult an experienced and knowledgeable DUI defense attorney if you’re interested in expunging an OWI conviction. Contact us online or call us at our 24/7 defense hotline at 1-800-342-7896.

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