Monday, January 26, 2015

Changes to Michigan's Criminal Expungement Statute

Changes to Michigan's Criminal Expungement Statute

Effective January 14, 2015. Public Act 463.

For those wishing to expunge (set aside) a Michigan criminal conviction in their past, some major changes occurred on January 14, 2015.

With the passing of Public Act 463, Individuals with a certain felony in their past (or misdemeanor) may be able to petition the court where the individual was originally sentenced.  If the conviction is expunged, there should be no public record of it ever happening.

Significant January changes included:

- Crimes that were deferred under one of Michigan's deferral statutes (i.e. 7411, HYTA) are now countable as a misdemeanor on your record for the purposes of Expungement.

- Up to two 93-day or 1-year misdemeanors (not just 90-day misdemeanors as in the prior law), may be on your record and still get one felony expunged.
- If you have only two misdemeanors on your record (no felonies) you may petition to get one or BOTH of them expunged.

- If your petition is denied by the convicting court, a person may file another petition concerning the same conviction or convictions with the convicting court 3 years after the date the convicting court denies the previous petition, unless the court specifies an earlier date for filing another petition in the order denying the petition.

With the passage of the current law, Expungement may be available to a wider group of individuals.

However, there are still significant details & restrictions involved, and not all felonies (or misdemeanors) will qualify to be expunged. 

Call Wittman Legal Services for more information.

Clay Wittman


Monday, January 19, 2015

Voluntary Statements to the Police

As any experienced criminal defense attorney will tell you, never give the police a "statement", whether written or verbal, without the advice and consultation of an attorney.  Furthermore, most people know about "Miranda Rights" (you have the right to be silent, etc.), but some people misapply the "right" to be given Miranda Rights.

The Miranda warning (aka Miranda rights or Miranda rule), is the "warning" given by police to criminal suspects in police custody (or in a custodial interrogation) before they are interrogated to preserve the admissibility of their statements against them in criminal proceedings.  If you are truly in custody, and the police don't give you your Miranda rights, then any statements given by you while in custody should not be admissible against you in court.

However, as recent as last week, in the Michigan Court of Appeals (Unpublished) case People v. Livingston, the court again reiterated that you are not required to be given the Miranda warnings unless you are in custody (or in custodial interrogation).  There are numerous factors to look at whether you were in custody, but a big factor is whether you are free to leave, free to terminate your discussions with police and leave their presence.

Here is a summary of the case:

 Detectives approached defendant in the middle of the day, informed him that he was not under arrest, and asked him if he would be willing to accompany them to the police station for questioning. He voluntarily agreed to accompany them and the detectives thanked him several times for his willing cooperation. Once at the station, he accompanied the detectives inside through the public parking lot and entrance. The record did not indicate that "he was ever handcuffed or otherwise restrained during the interview." Although defendant was "occasionally asked to sit down for security reasons, he was also permitted to stand, stretch, and reenact events related to the incident - including placing one of the detectives in a headlock." He was also offered several bathroom breaks, and, at the start of the interview, was told that detectives would drive him home after the interview was completed. Also, "when defendant asked the detectives what was 'holding' him there, they replied, 'Nothing.'"

The court held that the circumstances "did not rise to the level of creating an environment where a 'reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave,'" and so "did not create the deprivation of freedom necessary to find that defendant was in 'custody' for Miranda purposes."

Therefore, those statements he made to Police can be used against him! 

Seek the advice of a criminal defense attorney BEFORE you voluntarily act on a police request for your statement.