The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5349

August 9, 1978

RECORDS AND RECORDATION:

Expungement of records of conviction of crime

LICENSES AND PERMITS:

Expunged records of applicant for license

Where, pursuant to 1965 PA 213, a person's conviction for a crime has been set aside, a record of the conviction may not be made available to any licensing agency.

The Honorable George Cushingberry, Jr.

House of Representatives

State Capitol

Lansing, Michigan

You have asked the following question regarding 1965 PA 213, MCLA 780.621 et seq; MSA 28.1274(101) et seq:

'What is the specific intent of the phrase 'for purposes of the law,' and does the statute, in effect, permit the State Bar to request expunged records of applicants?'

1965 PA 213, supra, Sec. 1 provides for the setting aside of a conviction in certain criminal cases. This section, in part, states:

'Any person who is convicted, or pleads guilty to not more than 1 offense, excepting traffic violations and criminal offenses, the maximum punishment for which is life imprisonment, the commission of which occurred before his twenty-first birthday, may move the convicting court for the entry of an order setting aside the conviction in said cause. Such motion shall not be made until the expiration of 5 years from the time of the entry of the guilty plea or rendition of the decision of the court or jury . . .'

If the Court orders that the conviction be set aside, 1965 PA 213, supra, Sec. 2, states that the applicant, 'for purposes of the law, shall be deemed not to have been previously convicted.'

It should be noted that the setting aside of a conviction has the legal effect of annulling or voiding a past action of a court. See State ex rel Graves v Primm, 61 Mo 166 (1875); and Lazoff v Goodman, 138 NYS2d 684 (1955).

It will be noted that OAG, 1973-1974, No 4774, p 53 (June 15, 1973), held that the phrase 'for purposes of the law', used in 1965 PA 213, Sec. 2, supra, applies to an application for admission to the bar. The opinion further stated that if the conviction is set aside pursuant to 1963 PA 213, supra, an applicant for admission to the bar may state that he has not been previously convicted.

Therefore, if the offender is deemed not to have been previously convicted, he or she must be entitled to all of the rights of an accused found not guilty, including the right to restoration of arrest card, fingerprint and description records. The right to restoration of arrest card, fingerprint and description records set forth in 1925 PA 289, Sec. 3, MCLA 28.243; MSA 4.463, which provides:

'. . . Should any person accused thereafter be released without a charge made against him, it shall be the mandatory duty of the official taking or holding any accused's fingerprints, arrest card and description to return same forthwith without the necessity of a request therefor. If not so returned, the accused so released shall have the absolute right to demand and receive such return at any time after such release and without need to petition for court action. Should any accused thereafter be found not guilty of the offense charged against him, the arrest card, the fingerprints and description shall be returned to him by a court order signed by the trial court and directed to the official holding same, which order shall issue automatically upon such finding of not guilty without the necessity of request therefor. . . .'

The right of restoration of such records, however, is not absolute. 1925 PA 289, Sec. 3, supra, expressly provides:

'The provisions of this section requiring the return of the fingerprints, arrest card and description shall not apply (1) where the person arrested was charged with the commission or attempted commission, with or against a child under the age of 16 years, of the crime of rape, sodomy, gross indecency, or indecent liberties unless a judge of any court of record, excepting the probate court, by express order entered of record, orders the return. . . .'

If a conviction has been set aside and if the exceptions noted in 1925 PA 289, Sec. 3, supra, are inapplicable, the arrest card, fingerprint and description records must be returned. Therefore, such records cannot be made available to any licensing agency of the state.

Frank J. Kelley

Attorney General