21.14​Setting Aside a Juvenile Adjudication

MCR 3.925(F)(1) states that “[t]he setting aside of juvenile adjudications is governed by MCL 712A.18e and MCL 712A.18t.” MCL 712A.18e addresses applications to set aside a juvenile adjudication, while MCL 712A.18t addresses automatic set aside of a juvenile adjudication.

 MCL 712A.18e(1) provides:

“Except as otherwise provided in [MCL 712A.18e(2)] and [MCL 712A.18t],^[116] a person who has been adjudicated of not more than 1 juvenile offense that would be a felony if committed by an adult and not more than 3 juvenile offenses, of which not more than 1 may be a juvenile offense that would be a felony if committed by an adult and who has no felony convictions may file an application with the adjudicating court or adjudicating courts for the entry of an order setting aside the adjudications. A person may have only 1 adjudication for an offense that would be a felony if committed by an adult and not more than 2 adjudications for an offense that would be a misdemeanor if committed by an adult or if there is no adjudication for a felony if committed by an adult, not more than 3 adjudications for an offense that would be a misdemeanor if committed by an adult set aside under this section. Multiple adjudications arising out of a series of acts that were in a continuous time sequence of 12 hours or less and that displayed a single intent and goal constitute 1 offense provided that none of the adjudications constitute any of the following:

“(a) An assaultive crime as that term is defined in [MCL 712A.18e](7).

(b) An offense involving the use or possession of a weapon.

(c) An offense with a maximum penalty of 10 or more years[‘] imprisonment.”

MCL 712A.18t(1) provides:

“Except as otherwise provided in [MCL 712A.18t], beginning [July 3, 2023¹¹⁷], an adjudication is set aside under [MCL 712A.18t] without filing an application under [MCL 712A.18e] 2 years after the termination of court supervision or when the person becomes 18 years of age, whichever is later.”

A.​Offenses That May Not Be Set Aside

MCL 712A.18e(2) and MCL 712A.18t(2) provide that the following adjudications and convictions may not be set aside under MCL 712A.18e or MCL 712A.18t:

•​an adjudication of an offense which if committed by an adult would be a felony for which the maximum punishment is life imprisonment; or

•​a conviction in a designated proceeding in the Family Division.¹¹⁸

In addition, MCL 712A.18t(2) provides that the following adjudications and convictions may not be automatically set aside under MCL 712A.18t:

•​an adjudication for an offense described in MCL 712A.2(a)(1)(A)-(I);

•​a conviction or adjudication for a violation of MCL 750.81a;

•​a conviction or adjudication for a violation of MCL 750.82;

•​a conviction or adjudication for a violation of MCL 750.90;

•​a conviction or adjudication for a violation of MCL 750.136b;

•​a conviction or adjudication for a violation of MCL 750.321;

•​a conviction or adjudication for a violation of MCL 750.322;

•​a conviction or adjudication for a violation of MCL 750.397;

•​a conviction or adjudication for a violation of MCL 750.411h

•​a conviction or adjudication for a violation of MCL 750.411i;

•​a conviction or adjudication for a violation of MCL 750.520d;

•​a conviction or adjudication for a violation of MCL 750.520g; or

•​a conviction or adjudication for a violation of MCL 750.543k.

B.​Procedure for Application

An application to set aside a juvenile adjudication under MCL 712A.18e “shall not be filed until the expiration of 1 year after the termination of jurisdiction.” MCL 712A.18e(3).

MCL 712A.18e(4)(a)-(g) provides that the application is invalid unless it is signed under oath by the person whose adjudication is to be set aside and unless it contains:

•​the applicant’s full name and current address;

•​a certified record of the adjudication that is to be set aside;

•​a statement that the applicant has not been adjudicated of a juvenile offense other than the juvenile offenses sought to be set aside;

•​a statement that the applicant has not been convicted of any felony offense;

•​a statement as to whether the applicant has previously filed an application to set aside “this or any other adjudication and, if so, the disposition” of the prior application;

•​a statement as to whether the applicant has any other criminal charge pending against him or her in any court in the United States or in any other country; and

•​a consent to the use of the nonpublic record created under MCL 712A.18e(13) to be held by the Department of State Police.¹¹⁹

“Upon application, the adjudicating court or adjudicating courts shall locate any court records or documents necessary to conduct a hearing under [MCL 712A.18e].” MCL 712A.18e(5).

C.​Submission of Application to Department of State Police

MCL 712A.18e(6) requires the applicant to submit a copy of the application and two complete sets of fingerprints to the Department of State Police. MCL 712A.18e(5) further provides:

“The department of state police shall compare [the submitted] fingerprints with the records of the department, including the nonpublic record created under [MCL 712A.18e(13)],^[120] and shall forward a complete set of fingerprints to the Federal Bureau of Investigation for a comparison with the records available to that agency. The department of state police shall report to the court in which the application is filed the information contained in the department’s records with respect to any pending charges against the applicant, any record of adjudication or conviction of the applicant, and the setting aside of any adjudication or conviction of the applicant and shall report to the court any similar information obtained from the Federal Bureau of Investigation. The court shall not act upon the application until the department of state police reports the information required by this subsection to the court.”

D.​Contesting Application or Order to Set Aside

“A copy of the application must be served upon the attorney general and, if applicable, upon the office of the prosecuting attorney who prosecuted the offense.” MCL 712A.18e(7). The attorney general and the prosecuting attorney must have the opportunity to contest an application filed under MCL 712A.18e. MCL 712A.18e(7). “If the attorney general or prosecuting attorney wishes to contest an application, the attorney general or prosecuting attorney must do so not later than 35 days after service.” MCL 712A.18e(7).

“The attorney general and the prosecuting attorney who prosecuted the offense shall not contest the setting aside of an adjudication without an application under [MCL 712A.18t].” MCL 712A.18t(3).

E.​Victim Notification for Assaultive Crimes and Serious Misdemeanors¹²¹ 

MCL 712A.18e(7) provides, in part:

“If the adjudication was for an offense that if committed by an adult would be an assaultive crime or serious misdemeanor, and if the name of the victim is known to the prosecuting attorney, the prosecuting attorney shall give the victim of that offense written notice of the application and forward a copy of the application to the victim under . . .MCL 780.796a.^[122] The notice must be sent by first-class mail to the victim’s last known address. The victim has the right to appear at any proceeding under [MCL 712A.18e] concerning that adjudication and to make a written or oral statement.”

1.​“Assaultive Crimes”

For purposes of the victim notification required by MCL 712A.18e(7), “‘[a]ssaultive crime’ means that term as defined in . . . MCL 770.9a.” MCL 712A.18e(7)(a). The “assaultive crimes” set out in MCL 770.9a(3)¹²³ are:

•​assault or assault and battery against a Department of Health and Human Services employee causing serious impairment of body function, MCL 750.81c(3);

•​felonious assault, MCL 750.82;

•​assault with intent to commit murder, MCL 750.83;

•​assault with intent to do great bodily harm less than murder or assault by strangulation or suffocation, MCL 750.84;

•​assault with intent to maim, MCL 750.86;

•​assault with intent to commit a felony not otherwise punished, MCL 750.87;

•​assault with intent to rob and steal while unarmed, MCL 750.88;

•​assault with intent to rob and steal while armed, MCL 750.89;

•​intentional assaultive conduct against pregnant individual resulting in miscarriage or stillbirth or death to embryo or fetus, MCL 750.90a;

•​intentional assaultive conduct against pregnant individual resulting in miscarriage or stillbirth by that individual or death or great bodily harm to the embryo or fetus, MCL 750.90b(a)-(b);

•​attempt to murder, MCL 750.91;

•​a violation of MCL 750.200 to MCL 750.212a (governing explosives, bombs, and harmful devices);

•​first-degree murder, MCL 750.316;

•​second-degree murder, MCL 750.317;

•​manslaughter, MCL 750.321;

•​kidnapping, MCL 750.349;

•​prisoner taking another as hostage, MCL 750.349a;

•​kidnapping a child under age 14, MCL 750.350;

•​mayhem, MCL 750.397;

•​stalking, if the victim was less than 18 years of age at any time during the offender’s course of conduct and the offender is 5 or more years older than the victim, MCL 750.411h(2)(b), or if the court placed the offender on probation as provided in MCL 750.411h(3);

•​aggravated stalking, MCL 750.411i;

•​first-degree criminal sexual conduct, MCL 750.520b;

•​second-degree criminal sexual conduct, MCL 750.520c;

•​third-degree criminal sexual conduct, MCL 750.520d;

•​fourth-degree criminal sexual conduct, MCL 750.520e;

•​assault with intent to commit criminal sexual conduct, MCL 750.520g;

•​armed robbery, MCL 750.529;

•​carjacking, MCL 750.529a;

•​unarmed robbery, MCL 750.530; and

•​a violation of the Michigan Anti-Terrorism Act, MCL 750.543a et seq.

2.​Serious Misdemeanors

For purposes of the victim notification required by MCL 712A.18e(7), “‘[s]erious misdemeanor’ means that term as defined in section 61 of the William Van Regenmorter crime victim’s rights act [(CVRA)], 1985 PA 87, MCL 780.811.” MCL 712A.18e(7)(b). The “serious misdemeanors” set out in MCL 780.811(1)(a) are:

•​assault and battery, including domestic violence, MCL 750.81;

•​assault resulting in infliction of serious or aggravated injury, including aggravated domestic violence, MCL 750.81a;

•​threatening a DHHS employee with physical harm, MCL 750.81c(1);

•​breaking and entering or illegal entry, MCL 750.115;

•​fourth-degree child abuse, MCL 750.136b(7);

•​contributing to the neglect or delinquency of a minor, MCL 750.145;

•​using the internet or a computer to make a prohibited communication, MCL 750.145d;

•​embezzlement from a vulnerable adult of an amount of less than $200, MCL 750.174a(2) or MCL 750.174a(3)(b);

•​embezzlement from a vulnerable adult of an amount of $200 to $1,000, MCL 750.174a(3)(a);

•​intentionally aiming a firearm without malice, MCL 750.233;

•​discharge of a firearm intentionally, but without malice, aimed at a person, MCL 750.234;

•​discharge of a firearm intentionally, but without malice, aimed at a person, resulting in injury, MCL 750.235;

•​indecent exposure, MCL 750.335a;

•​stalking, MCL 750.411h;

•​committing a moving violation in a work zone or school bus zone, causing injury, MCL 257.601b(2);

•​moving violation causing death, MCL 257.601d(1);

•​moving violation causing serious impairment of a body function, MCL 257.601d(2);

•​leaving the scene of a personal-injury accident, MCL 257.617a;

•​violating MCL 257.625 (offenses involving the operation of a vehicle while intoxicated, while visibly impaired, with an unlawful bodily alcohol content, or with any amount of certain controlled substances in the body¹²⁴), if the violation involves an accident resulting in damage to another individual’s property or physical injury or death to another individual;

•​selling or furnishing alcoholic liquor to an individual less than 21 years of age, MCL 436.1701, if the violation results in physical injury or death to any individual;

•​operating a motorboat while under the influence of or visibly impaired by alcoholic liquor or a controlled substance, or with an unlawful blood-alcohol content, MCL 324.80176(1) or MCL 324.80176(3),¹²⁵ if the violation involves an accident resulting in damage to another individual’s property or physical injury or death to any individual;

•​a violation of a local ordinance substantially corresponding to a violation listed above; and

•​a violation charged as a crime¹²⁶ or serious misdemeanor listed above but subsequently reduced to or pleaded to as a misdemeanor.

F.​Court Action on the Application

MCL 712A.18e(8) provides that “[u]pon the hearing of the application, the court may require the filing of affidavits and the taking of proofs as it considers proper.”

1.​Setting Aside an Adjudication

For all offenses other than unlawfully driving away an automobile (UDAA) or certain prostitution-related offenses committed by victims of human trafficking, which must be set aside if the applicant otherwise meets all of the requirements of MCL 712A.18e,¹²⁷ the setting aside of an adjudication is conditional and a privilege, not a right. MCL 712A.18e(9); MCL 712A.18e(10).

The Family Division may enter an order setting aside an applicant’s juvenile adjudication(s)¹²⁸ if it “determines that the circumstances and behavior of the applicant from the date of the applicant’s adjudication to the filing of the application warrant setting aside the . . . adjudication[(s)] . . . and that setting aside the adjudication[(s)] . . . is consistent with the public welfare[.]” MCL 712A.18e(9). Upon submission by the applicant of a certificate of completion from the Michigan Youth ChalleNGe Academy,¹²⁹ the Family Division must “determine that the applicant’s circumstances and behavior warrant setting aside the adjudication[(s)],” and “[i]f the court also determines that setting aside the adjudication[(s)] . . . is consistent with the public welfare, the court may enter an order setting aside the adjudication as provided in [MCL 712A.18e(9)].” Id.

The nature of an offense, standing alone, is insufficient to warrant denial of an application; rather, the court must balance the circumstances and behavior of the offender and the public welfare. People v Rosen, 201 Mich App 621, 622-624 (1993) (applying former MCL 780.621(9) (since deleted; language similar to former MCL 780.621(9) can now be found at MCL 780.621d(13)).

2.​Mandatory Setting Aside of UDAA Adjudication

An adjudication for an offense that, if committed by an adult, would constitute unlawfully driving away an automobile (UDAA) or attempted UDAA, MCL 750.413, must be set aside if an application is filed and the applicant otherwise meets the requirements of MCL 712A.18e. MCL 712A.18e(10)(a).

3.​Mandatory Setting Aside of Adjudications for Prostitution-Related Offenses Committed by Human Trafficking Victims

If an application is filed and the applicant otherwise meets the requirements of MCL 712A.18e, an adjudication for an offense that, if committed by an adult, would constitute a violation or attempted violation of MCL 750.448 (accosting/soliciting/inviting another person to commit prostitution or do a lewd/immoral act), MCL 750.449 (admitting another person for purposes of prostitution), MCL 750.450 (aiding/abetting another person in violating MCL 750.448, MCL 750.449, or MCL 750.449a¹³⁰), or a substantially corresponding local ordinance, must be set aside if the applicant “committed the offense as a direct result of his or her being a victim^[] of a human trafficking violation.” MCL 712A.18e(10)(b).

G.​Effect of Order

If the court grants the application and enters an order setting aside a juvenile adjudication under MCL 712A.18e, or upon the automatic set aside of an adjudication under MCL 712A.18t, the applicant or person is considered not to have been previously adjudicated, except as provided in MCL 712A.18e(13) or MCL 712A.18t(6)¹³² and as follows:

•​The applicant or person is not entitled to the remission of any fine, costs, or other money paid as a consequence of an adjudication that is set aside.¹³³

•​Setting aside a conviction under MCL 712A.18e or MCL 712A.18t does not affect the right of the applicant to rely upon the adjudication to bar subsequent proceedings for the same offense.

•​Setting aside a conviction under MCL 712A.18e or MCL 712A.18t does not affect the right of a victim of an offense to prosecute or defend a civil action for damages.

•​Setting aside a conviction under MCL 712A.18e or MCL 712A.18t does not create a right to commence an action for damages for detention under the disposition that the applicant served before the adjudication is set aside. MCL 712A.18e(11)(a)-(d); MCL 712A.18t(4)(a)-(d).

In addition, upon the setting aside of an adjudication under MCL 712A.18t, the person is considered to have been previously adjudicated for “[r]esearch on the utilization and effectiveness of the set-aside process.” MCL 712A.18t(4)(e).

When setting aside a juvenile adjudication, the court must not remove or expunge the adjudication from the juvenile’s driving record. MCL 712A.18e(17); MCL 712A.18t(10).

H.​Access to Records of Adjudications That Have Been Set Aside

MCL 712A.18e(12)-(15) and MCL 712A.18t(5)-8) set out requirements regarding the maintenance of and access to nonpublic records of the state police.

If the Family Division grants an application and enters an order setting aside a juvenile adjudication, it must send a copy of the order to the arresting agency and the Department of State Police. MCL 712A.18e(12). If an adjudication is automatically set aside under MCL 712A.18t, the court must notify the arresting agency and the Department of State Police about the order. MCL 712A.18t(5).

MCL 712A.18e(13) and MCL 712A.18t(6) contain substantially similar provisions addressing the nonpublic record or an order setting aside an adjudication:

“The department of state police shall retain a nonpublic record of the order setting aside an adjudication [or adjudications] . . . and of the record of the arrest, fingerprints, adjudication, and disposition of the applicant in the case to which the order applies. Except as provided in [MCL 712A.18e(14) or MCL 712A.18t(7)],^[134] this nonpublic record must be made available only to a court of competent jurisdiction, an agency of the judicial branch of state government, a law enforcement agency, a prosecuting attorney, the attorney general, or the governor upon request and only for the following purposes:

(a) Consideration in a licensing function conducted by an agency of the judicial branch of state government.

(b) Consideration by a law enforcement agency if a person whose adjudication has been set aside applies for employment with the law enforcement agency.

(c) To show that a person who has filed an application to set aside an adjudication has previously had an adjudication set aside under this section. [This subsection only applies to applications to set aside under MCL 712A.18e.]

(d) The court’s consideration in determining the sentence to be imposed upon conviction for a subsequent offense that is punishable as a felony or by imprisonment for more than 1 year.^[135]

(e) Consideration by the governor, if a person whose adjudication has been set aside applies for a pardon for another offense.” MCL 712A.18e(13)(a)-(e); MCL 712A.18t(6)(a)-(d).

The nonpublic record maintained by the Department of State Police is exempt from disclosure under the Freedom of Information Act (FOIA), MCL 15.231 et seq. MCL 712A.18e(15); MCL 712A.18t(8).¹³⁶

“Except as provided in [MCL 712A.18e(13) or MCL 712A.18t(6) (governing the nonpublic record retained by the Department of State Police)], a person, other than the applicant [or, in the case of an automatic set-aside, a person, other than the person whose adjudication is set aside under MCL 712A.18t or a victim¹³⁷], who knows or should have known that an adjudication was set aside under [MCL 712A.18e or MCL 712A.18t], who divulges, uses, or publishes information concerning an adjudication set aside under [MCL 712A.18e or MCL 712A.18t] is guilty of a misdemeanor.” MCL 712A.18e(13); MCL 712A.18t(9).