If You Can’t do Expungement – What About Pardon or Collateral Attack?
- To repeat once more; expungement of a Michigan DUI is precluded by law.
As indicated elsewhere on this blog, it is virtually NOT POSSIBLE to have a Michigan DUI removed from your record, so there is really no reason to contact us to have a Michigan DUI attorney from the Barone Defense Firm confirm this irrefutable fact.
However, from a theoretical perspective, outside of expungement, there are two other considerations, pardon and collateral attack. The first of these options, a pardon from the governor, is allowed under the Michigan Constitution:
The governor shall have power to grant reprieves, commutations and pardons after convictions for all offenses, except cases of impeachment, upon such conditions and limitations as he may direct, subject to procedures and regulations prescribed by law. He shall inform the legislature annually of each reprieve, commutation and pardon granted, stating reasons therefore.
The most important factor in the governor’s power is that any offense may be pardoned, including a drinking and driving offense. However, because of the very nature of a pardon, which requires the governor’s approval, it is an unlikely remedy.
Another consideration often discussed is that of collateral attack. This issue arises most frequently when a prior conviction is used to enhance a new offense. The issue is that the prior conviction is somehow legally deficient, which should preclude its use to raise the penalties on a new charge. This concept is separate from an expungement in that it does not remove the charge from a criminal record. Instead, if successful, the prior conviction will be removed, but the case will continue to either plea or trial. While it does not necessarily change the outcome on the original conviction, the difference in conviction date (from sometime in the past to sometime in the future) of the prior offense could have significant impact on the current charge, especially the penalties.
Here in Michigan, the courts have determined that “a collateral attack occurs whenever a challenge is made to a judgment in any manner other than through a direct appeal. Therefore, a challenge brought in any subsequent proceeding or action is a collateral attack.” However, as broad as the definition appears, in OWI, the basis for a collateral attack has been limited.
The major issue for collateral attack is defendant’s right to counsel. The court “recognizes a defendant’s right to collaterally attack prior sentences procured in alleged violation of the right to counsel.” However, where there was no right to counsel, collateral attack is not available. Conversely, where there was counsel at a prior conviction, a collateral attack is not available. Courts have specifically stated that, “[c]ollateral attacks on the validity of a prior plea are not permitted where the defendant was represented by counsel.” This is based upon People v. Ingram, where the Court limited collateral attack of pleas, where an attorney was present or waived. Due to the severe limitation of the collateral attack and limited remedy, it is not a ready substitute for expungement.
 Michigan Constitution of 1963, Article V, Section 14.
 People v. Howard, 212 Mich.App. 366, 369, 538 N.W.2d 44, 46 (1995).
 People v. Carpentier, 446 Mich. 19, 37, 521 N.W.2d 195, 203 (1994)(FN 10).
 People v. Haynes, 256 Mich.App. 341, 342, 664 N.W.2d 225, 227 (2003)(holding that using a prior operating a vehicle by a minor with a bodily alcohol content for sentence enhancement does not violate due process nor is it ex post facto.)
 Howard, supra at 370, 46 .
 People v. Ingram, 439 Mich. 288, 295, 484 N.W.2d 241, 243 (1992). (“The validity of such a plea, where the defendant was represented by an attorney when entering the plea or when the defendant intelligently waived the right to counsel, including the right to court-appointed counsel if indigent, is unassailable.”) See Also People v. Turrell, 440 Mich. 895, 487 N.W.2d 757 (1992).