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Trial Court Cannot Order Secretary of State to Expunge Driving Record

Court of Appeals

Case: People v. McCann

Court: Michigan Court of Appeals ( Published Opinion )

Judges: Per Curiam – Servitto, Gadola, and O’Brien

Issues:Whether the dismissal of charges following delayed sentencing constitutes an “expunction” for purposes of MCL 257.732(22); Statutory interpretation; People v. Droog; Spectrum Health Hosps. v. Farm Bureau Mut. Ins. Co. of MI; Matheson v. Secretary of State (SOS); Interplay between certain provisions of the Michigan Vehicle Code (MVC) (MCL 257.1 et seq.) and delayed sentence under MCL 771.1; “Conviction” defined; MCL 257.8a(a); MCL 257.732(1)(b); Operating while intoxicated causing serious injury (OUIL)

Summary:Holding that MCL 257.732(22) precludes the trial court from ordering the expunction of the defendant’s OUIL conviction from the SOS driving abstract, the court reversed.On appeal, the prosecution contended that the MVC prohibits the trial court from ordering the SOS to strike the OUIL conviction from defendant’s driving record even though the conviction was dismissed by the trial court under a delayed sentence plea agreement. The court agreed.

The MVC “does not prevent removal of convictions from a criminal record. However, removal of a conviction from a criminal record does notrequire removal of it from a report maintained by” the SOS under the MVC. The court has recognized that the SOS’s “driving records are distinct from criminal records in both purpose and scope.” In this case, the trial court forwarded an abstract listing the felony conviction following defendant’s guilty plea. Although the MVC also requires a trial court to forward abstracts to the SOS following the dismissal of charges, “it does not command the secretary to take specific action in response.”

On the other hand, the MVC is clear that “[e]xcept as provided in this act and notwithstanding any other provision of law, a court shall not order expunction of any violation reportable to the secretary of state under this section.” Moreover, the court stated in Droog that if a conviction is a violation reportable to the SOS, the SOS “cannot be required to expunge the record of the violation if the underlying conviction has been set aside. By analogous reasoning, a trial court may not require” the SOS “to amend driving records when a conviction is dismissed following guilty plea and delayed sentencing.”

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