What Happens If a Set-Aside Petition Gets Denied?
A denial of a petition to expunge a DUI conviction is not the end of the road. If a Michigan court denies your application to set aside (expunge) a conviction, you generally cannot file again on that same conviction for three years, but the judge has the power to allow an earlier date in the denial order itself. That is worth knowing before you ever walk into court. My team and I handle Metro Detroit DUI expungement petitions and driver’s license work side by side.
We count on winning the first time around. However, in the event that a set aside ever gets denied, our experience would allow us to spot exactly why the judge didnât agree and what would need to be fixed to ensure success the next time.
Why a Michigan Judge Denies a Set-Aside Petition
Denials fall into two buckets, and the difference between them decides what you do next.
The first is eligibility. Michigan law bars a set-aside outright for certain convictions. An operating while intoxicated conviction can only be set aside if it was a first violation, and only if you have never had a first-offense OWI set aside before. An OWI that caused injury or death cannot be set aside at all, and neither can a traffic offense committed by a commercial license holder while operating a commercial vehicle.
The court also cannot grant the petition if the waiting period has not fully run, if you were convicted of any criminal offense during that period, or if you have criminal charges pending.
The second reason for a denial is the judgeâs exercise of discretion, and this is where an otherwise solid case can fall short. It is CRITICAL to provide the judge with a persuasive petition that makes clear granting an expungement is the right thing to do. Even when every box is checked, Michigan law is explicit that setting aside a conviction is a privilege and NOT a right.
Instead, the judge has to find that your circumstances and behavior since the conviction warrant setting it aside, and that granting it is consistent with the public welfare. On a first OWI in particular, the court may weigh whether you completed and benefited from rehabilitative or educational programming and may deny the petition if it is not convinced that you did.
If you were denied on eligibility grounds, the answer is usually arithmetic. That typically only happens when someone tries a âdo-it-yourselfâ (DIY) appeal. If you get denied on discretion, the answer is evidence. Thatâs where having the right lawyer makes all the difference.
How Long Before You Can File Again
This is the number people get wrong, so it is worth being precise about how long the law makes you wait before filing again. Once the convicting court denies your petition, you cannot file another petition on the same conviction for 3 years from the date of that denial. Not one year. Three years.
There is an exception written into the statute. The judge can specify an earlier date in the order denying your petition. The standard order form Michigan judges sign in these cases has a box for exactly that date. The judge checks either “three years after the date of this order” or “earlier than three years,” and then writes in a date.
This should NEVER be overlooked. If you are heading into a hearing where an initial denial is possible, an earlier refiling date should always be requested on the record before the judge signs anything. Coming back in a year with the problem corrected beats waiting three years for permission to try again.
What a Denial Costs You
A denial costs you the expense of filing and whatever waiting period the judge orders before you can refile. It does not cost you anything you had before you filed. In other words, you are no worse off coming out than you were going in.
Although losing would be a disappointment, a denial does not use up your ability to try again. Fortunately, as of this writing, our firm has NEVER had an application to set aside a conviction (expungement) denied. Rather than learning from mistakes, we do whatâs necessary to avoid them in the first place.
Michigan allows one first-offense OWI to be set aside in a lifetime, and that limit is triggered by applying for and receiving one, not by applying and losing. People talk themselves out of filing because they mistakenly think they only get one chance, and a loss burns that opportunity. It does not.
Your driving record is a separate matter, and an OWI stays separate whether you win or lose. The law specifically forbids the removal of a DUI conviction from a personâs driving record maintained by the Michigan Secretary of State.
Ultimately, you have two different records, kept by two different institutions: The Michigan State Police maintain your criminal record; the Secretary of State has sole control over your driving record. A court order setting aside a DUI ONLY affects your criminal record.
What to Do Between Now and Your Next Filing
If you have already tried to set aside a DUI and lost, know that time by itself does not change anything. What changes the result is addressing whatever the judge felt was not good enough. A few things carry real weight:
- A clean record. A new conviction or a pending charge will sink the next petition, so the waiting period needs to be quiet.
- Completed programming. If the court questioned whether you benefited from rehabilitative or educational programs, finish them and document it.
- A strong account of your life since the conviction, the kind our team puts together as part of your petition. Work, treatment, service, stability. The judge is deciding about the person standing in front of them, not the one in the police report.
- A cleaner application. It has to be signed under oath, include a certified record of the conviction, and disclose any earlier set-aside application and how it turned out.
None of that is glamorous, but all of it is doable, and most of it is within your control. Our overview of whether a Michigan DUI can be expunged walks through the eligibility rules in plain language.
Call Now to Discuss Your Situation
If your set-aside petition was denied, or you are worried that the one you are about to file might be, we are glad to look at it with you. My team and I have spent more than 30 years helping good people in Michigan put one bad decision behind them, and we know exactly what a judge needs to see the second time around.
Contact us today to set up a free, confidential phone consultation. Our office is open Monday through Friday from 8:30 a.m. to 5:00 p.m., and an answering service handles calls after hours so you always speak with a live person. You can also connect with us online by filling out our contact form or using the chat box on our website. We will take your information, assess your situation, and give you an honest evaluation of where you stand.
Contact our office today to get started.