Expunging a drunk driving conviction finally becomes a reality in Michigan
Until this year, people with criminal convictions had the ability to expunge (or “set aside”) most misdemeanors and felonies, but never a drunk driving conviction. That all changed in February 2022. Because the expungement law changed. See MCL 780.621 et seq. (Am. 2021, Act 78, Eff. Feb. 19, 2022).

For the first time, many people became eligible to expunge (or “set aside”) their first operating while intoxicated (OWI) conviction. Assuming, of course, they could meet the eligibility criteria.

Can I expunge my drunk driving?
Eligibility can be thought about in two parts: (1) legal eligibility, and (2) the much more vague, “worthiness” (my own word) to have the conviction set aside. Let me explain.

Am I legally eligible to expunge my drunk driving conviction?
Legal eligibility is pretty straightforward. By law, you can only apply to set aside your first drunk driving conviction. Only your first. And only a misdemeanor. If the first OWI led to some serious injuries or, worse, death, then it’s most likely a felony and ineligible. But otherwise all first misdemeanor OWIs are eligible. This includes operating while visibly impaired, or operating with a high blood alcohol content (>.17 BAC), or operating under the influence of drugs.

The next step is to determine if enough time has passed since this conviction. It must be at least 5 years. And to be clear, that’s not 5 years from when you were convicted, i.e., you pled guilty or a jury found you guilty. Rather, it is 5 years from the true conclusion of your case. For most, that will be the day you were released (or “discharged”) from probation. If it’s 5 years after that date, and you were not convicted of anything else between that date and today, you are most likely[1] legally eligible to expunge your drunk driving connection. 

Am I “worthy” to expunge my drunk driving conviction?
Beyond legal eligibility, the courts consider, in all cases, “the circumstances and behavior” of the person applying and whether expunging (or “setting aside”) the conviction is “consistent with the public welfare.” See MCL 780.621d. Put differently: The courts are essentially deciding on an equitable basis whether the person is a fit candidate to have the conviction expunged. Did you turn your life around after the conviction? What changes did you make as a result? Did you stay out of trouble? Did you learn from it? And while not a requirement, most courts want to know: Why are you looking to expunge the conviction? These questions and others are the type the courts like to have an answer to before they decide whether you’re “worthy” to expunge any conviction.

But drunk driving requires even more to be “worthy.”
Unlike expunging other convictions, drunk driving comes with some additional criteria the courts may need address beyond just your “behavior” and the “public welfare.” Specifically, the courts may consider whether an applicant has “benefited from rehabilitative or educational programs” or “whether such steps were taken by the petitioner before sentencing for the first violation operating while intoxicated offense conviction.” MCL 780.621c. The court is “not constrained by the record made at sentencing … and may deny the petition if it is not convinced that the [applicant] has either availed himself … or benefited from rehabilitative or educational programming he or she has completed.” Id. In other words, not only is the court to consider whether your “behavior and circumstances” have changed and that it’s in the “pubic welfare” but there’s also this additional peek into whether you participated and benefited from relevant programming. It appears harder, at least on paper, to expunge or set aside a drunk driving conviction in Michigan than any other criminal conviction.

Bottom line: Eligible Michiganders can—for the very first time—expunge (or “set aside”) their first OWI (drunk driving) conviction.
As with all things law-related, make sure you consult with a lawyer to ensure you are, in fact, eligible to expunge your OWI (drunk driving) conviction.

Feel free to contact our office at (616) 965-2621 or contact@zamzowfabian.com if you believe you might be eligible and to set up a free consultation to discuss your expungement options.

[1] As with all things law-related, you should consult with a lawyer to confirm your eligibility.