Beginning on January 1, 2018, a minor convicted of a minor in possession of alcohol (“MIP“) for the first time will receive a civil infraction, instead of a misdemeanor.  Unfortunately for thousands of adults, the new law will not retroactively change an old MIP conviction from a misdemeanor to a civil infraction.[1] So, what can you do to remove that decade old MIP that you were probably required to disclose on every job application, professional license, or volunteer application you have completed since you were convicted of the MIP? You can motion the convicting Court to set aside the conviction, or what is commonly known as expungement. If your conviction is set aside, for most purposes, you are considered to not have been convicted of the crime.

To have a conviction set aside, a person must file an application with the convicting court. There are very specific requirements to be eligible to have a conviction set aside. 

First, to set aside a felony, a person must not have more than 1 felony and two misdemeanors convictions. If a person has two felonies, they are not eligible to have their felony conviction set aside. If a person has one felony, but three misdemeanors, they are not eligible to have their felony conviction set aside. As you can see, the requirement is very black and white and merely a matter of counting your prior convictions.

A person convicted of no felonies and either one or two misdemeanors convictions, can petition the Court to set aside one or both of their misdemeanor convictions. 

Next, the Court will look at the specific conviction that the person is attempting to set aside to determine if it is eligible to be set aside.

For example, a conviction which carries a maximum sentence of life in prison cannot be set aside, nor can a conviction for the attempt of such a crime. A few other examples of convictions that cannot be set aside are a conviction for child abuse, a conviction for child sexually abusive activity or materials, most convictions for criminal sexual conduct, a traffic offense, including a conviction for operating while intoxicated, and a felony conviction for domestic violence if the person also has a prior misdemeanor conviction for domestic violence. 

If the crime was assaultive in nature, the prosecutor will give the victim written notice of the request to have the conviction set aside. This may result in the victim contesting your expungement application.

The final requirement is that the person must wait at least five (5) years after the imposition of the sentence, discharge from probation, discharge from parole, or completion of the term of imprisonment, whichever is later, before petitioning the convicting Court to set aside the conviction. 

On the application to set aside a conviction, a person is required to disclose specific information. Importantly, the application must contain a certified record of each conviction, a list of charges filed against the person that did not end in a conviction, and other information about the person’s criminal history and background. 

The applicant must also submit a copy of the application and one complete set of fingerprints to the state police, along with a $50 fee. The application must be served on the Attorney General and the office of the prosecutor who prosecuted the case. 

The statute makes clear that there is no right to have a conviction set aside, but that it is a privilege. This means that the Judge has discretion in deciding to set aside a conviction. Thus, even if you meet each requirement above, the Judge could still deny your application. Some Judges will grant the request as a matter of course if the requirements are met. Other Judges want to see some evidence of good character. Therefore, you will want to be prepared to show the Court why you deserve to have your conviction set aside.

If you need assistance in determining whether a conviction is eligible to be set aside or assistance in filing an application to set aside a conviction, please contact an attorney at HaasCaywood PC, and we would gladly assist you.

[1] A recent amendment to the law also made clear that a preliminary breath test cannot be administered without the consent of the minor or a court order. Further, there is no longer a civil fine for refusing to take a preliminary breath test.