Do you want to remove a DUI conviction from your record?
Each week a handful of potential clients contact me about expunging their criminal record. Many of these clients ask if they are able to expunge a drunk driving offense, and unfortunately the answer to that question is no. I always feel bad about delivering this sobering news, because these potential clients are hard workers, support families, and otherwise have been productive members of the community both before and after their DUI offense.
An isolated drunk driving case from the past still haunts their ability to reach their potential, and they are left with no recourse. After delivering this news over and over again, I decided that I needed to create an option for these potential clients. I can't change the current expungement law, but that is not the only way to have a criminal charge removed from your record in Michigan.
In Michigan, the Governor has what is called an executive clemency, which is listed in the Michigan Constitution. This power provides that 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.
Unlike the Michigan expungement law, which expressly excludes driving offenses such as drunk driving, the clemency power allows for removal of drunk driving offenses in Michigan.
The Michigan Supreme Court has held that the effect of a pardon by the Governor is such that it "releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense." People v. Van Heck, 252 Mich.App. 207, 216; 651 N.W.2d 174, 179 (2002).
While this outcome sounds like a dream come true, it is not the expectation, but rather the exception to the rule. When I agree to help a client with a pardon for a DUI offense, we must go into it knowing that it is more likely than not, that the request will be denied, because that is what history tells us. Some requests are simply stronger cases than others. Most people believe that pardons are only for the well-connected, but I believe the pardon process was created for people who can demonstrate merit and have earned a second chance. Those are the people I help with the Michigan DUI pardon process.
As a general rule, I believe that DUI convictions from a minimum of 5 to 7 years ago is a starting point; anything more recent is likely to be denied, and I will usually not take on that case unless the client presents a very good reason for consideration. I also believe that a single DUI conviction is the realistic maximum number of convictions to request clemency; multiple convictions is simply unlikely to prevail.
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A potential clemency application in my view must be supported at a minimum by documented sobriety since the conviction, a recent substance abuse evaluation from a licensed professional, documentation of education or employment since the incident, multiple letters of recommendation and a clear plan going forward.
I also find it helpful for a client to make both a written and video statement in support of their application. These statements should speak to why an exception should be made for their request to have a DUI conviction removed from their record.
All applications for clemency begin with the Parole Board for review. The board will conduct a review of the merits of the application and determine if the matter should move to a public hearing. If the board does not find merit, it goes directly to the Governor with a denial recommendation. If the board does find merit, the request will then proceed to the next step.
These steps involve notice of a potential hearing to the sentencing judge and the prosecutor, which allows for their input into the decision. If after reviewing this information, the board still finds merit, a 30 day notice goes out to the prosecutor, judge, Attorney General and any victims on the case. This aspect is very similar to the expungement process.
At the public hearing, an Assistant Attorney General, the Board's Chairperson, and any other members of the Board in attendance may question the petitioner applicant with the assistance of an attorney on all relevant issues.
The case is then referred back to the Board for a final executive meeting where the Board will vote on a recommendation to the Governor, taking into account all information received during the process and the public hearing.
After reaching a majority vote, the Board's recommendation and all relevant materials, including the public hearing transcript and other pertinent documents, are delivered to the Office of the Governor.
The Governor and his legal staff will review the application materials and the recommendations of the Board to determine whether executive clemency is warranted. The applicant and the Board are notified when a final determination is made.
Should the Governor grant a pardon request, the Governor's Office will issue the appropriate pardon documents, file the pardon with the Secretary of State, and notify the Michigan State Police and the applicant. At this point your conviction would be removed from your record, and you will receive a well deserved second chance.
My name is Jonathan Paul, and I'm a criminal defense attorney in Michigan. As part of my practice, I defend doctors, fellow attorneys, executives, senior military officers, teachers, professional and college athletes, airline pilots, and the good hard working people of Michigan who find themselves charged with a drunk driving offense. I also help clients petition the State of Michigan for a pardon of a prior DUI conviction, which could potentially remove the drunk driving offense from a criminal record.
I am also an author of three books, and a former criminal and constitutional law professor.
I currently live in Ann Arbor with my wife and kids, and prior to entering private practice, I was an Assistant District Attorney in New York City, and an Oakland County (Michigan) Prosecutor. As a prosecutor, I successfully prosecuted thousands of high profile felony, misdemeanor and drunk driving cases.
During my career as a prosecutor, I never lost a trial, and had a 100 percent conviction rate. This was a major accomplishment, as the Brooklyn District Attorney's Office is the busiest in the entire country, and Oakland County has a reputation as having some of the best criminal defense attorneys in the State of Michigan.
I'm currently a criminal defense attorney at Kelly & Kelly, P.C., a well established and Better Business Bureaus Accredited law firm that has been fighting for clients for the past twenty-five years. While I'm usually the lead attorney on criminal cases, I use a team approach, which gives the client multiple legal minds working on their case, and helping the client get the absolute best outcome.
Since leaving my career as a prosecutor, I've been selected and recognized in 2013 2014, 2015 & 2016 by Super Lawyers Magazine. This selection by Super Lawyers Magazine was featured in Hour Detroit Magazine and the New York Times. My work as a Michigan criminal defense lawyer has also earned me a "Superb" 10.0 Avvo Rating.
I'm licensed to practice law in Michigan and New York. I graduated from the University of Michigan Law School. I currently serve as the criminal law co-chair for the Washtenaw County Bar Association and I'm a member of the Oakland County Criminal Law Committee.