Seeking and obtaining an expungement of your first OWI offense in Michigan will minimally require the following seven steps: (1) determining eligibility, (2) gathering all the required paperwork, (3) preparing the petition for expungement, (4) serving the petition and all associated paperwork on both the Michigan Attorney General and prosecuting attorney, (5) Filing the petition with the court and obtaining a court date, (6) Preparing for “elocution” and presenting the case to the judge at the hearing, (6) following through subsequent to the hearing to assure the OWI conviction is in fact removed from the criminal record.
Each of these steps is necessary because the new Michigan OWI expungement law sets forth very specific procedures that must be followed meticulously before an OWI expungement case can be presented before a judge. These procedures are summarized below. Understanding and following these procedures comes subsequent to your determining if your Michigan OWI conviction is eligible for expungement. Eligibility was the subject of our previous article on the new Michigan OWI expungement law. We suggest that readers begin with a review of that article before reading this one.
Do I need an attorney to file an expungement?
Michigan OWI expungement is not automatic, and the law was and is not designed to allow individuals to pursue expungement without a lawyer. Furthermore, expungement does require a court hearing before a judge, and in determining if the OWI expungement should be granted, this judge will have a great deal of discretion. For both reasons the Michigan Expungement Lawyers at the Barone Defense Firm recommend that persons seeking expungement consult an attorney to assist you with the process.
This does not mean that you must have a lawyer. It is well within your rights to attempt the process on your own, but you will be held to the same rules of court that lawyers must follow, so unless you have some familiarity with these court rules, handling it yourself may be akin to setting yourself up for failure. In addition to the procedural rules that must be followed, it’s likely that you will be appearing in front of the same judge that oversaw your conviction. An experienced Michigan OWI defense attorney will know best how to persuade this judge to grant your petition for expungement.
Perhaps the best reason to hire a lawyer is that if you fail the process and are denied the expungement, you will have to wait an additional three years before you can apply again. Because of the potential for failure, it makes sense to have an attorney by your side to give you your best chance at winning your OWI expungement the first time.
What is required to obtain an expungement?
To be successful, you or your attorney must obtain the following items:
- The petition for expungement
- Certified records from your original case
- A signed, notarized affidavit
- Fingerprints taken and sent to Michigan State Police
- FBI background check
You (or your attorney) must then submit everything to the Michigan Attorney General’s Office, the prosecuting attorney, and the Judge prior to attending a hearing. Because this is a complex process, there are many possible places where simple mistakes can cause a failure.
Who will decide if my expungement is granted?
The most difficult part of the process will be convincing the Judge to grant the expungement. This is another step in the process in which your attorney will play a crucial role. The expungement will be filed before and will be decided by the same Judge who presided over the OWI. This means that you will likely be asking the same Judge you dealt with on your underlying case to now remove that conviction from your record. Your prior performance on bond, probation, and during all court-ordered activities will be scrutinized, as will all of your behavior subsequent to your conviction and before your expungement.
What factors will the judge consider in granting or denying my petition for expungement?
The new OWI expungement law specifically instructs the Judge to consider whether you have benefited from any of the rehabilitative or education programs that they ordered, or in which you voluntarily participated. Essentially, did you successfully participate in and complete all requirements for bond and probation? However, this is likely to mean that the Judge will require proof of sobriety and proof that you have maintained that sobriety for the years after the first offense OWI. While this is not an express condition of the law, this opinion is a result of our experience in similar matters and a fair interpretation of the specific language of the law.
For example, while the Judge is not expressly compelled to require proof of current sobriety, they are nevertheless allowed to deny the expungement if you did not avail yourself of the programs intended to promote such sobriety. They are also unlikely to take a risk by expunging a first offense OWI if you tell them you are still drinking. Again, the Judge must weigh the risk that you will re-offend before deciding to remove a conviction from your record.
The attorneys at the Barone Defense Firm have experience helping people through OWI charges and criminal expungements and, therefore, will bring that advocacy experience to Michigan OWI expungements across the state. We are here to help and make the process as painless as possible while also increasing the likelihood of a successful first petition for expungement.