Legal Question in Criminal Law in Michigan

I was told that in Michigan, an OWI offense cannot be expunged. Is this true even if I was never read my Miranda rights and not asked for permission for a blood draw?

Asked on 8/26/13, 8:32 am

2 Answers from Attorneys

Neil O'Brien Eaton County Chief Assistant Prosecuting Attorney

An expunction (setting aside a conviction) is controlled by statute: MCL 780.621. Subsection (2) says that a judge cannot set aside a motor vehicle code conviction under this process. But with the added details in your follow-up question, another option might come into play: a motion to withdraw plea, a motion for relief from judgment, etc. Those are harder to win on when you originally pled guilty, because by doing that you normally waive defenses including challenging the stop, probable cause for arrest, etc. But you should have an attorney review this personally -- and you should get him/her the full police report, a transcript of your plea and sentencing, and other records giving him/her a full understanding of all of your facts. Failure to read Miranda rights is an issue if you were interviewed by police about incriminating details of the crime after you were in custody ... and the prosecutor wants to use your statement as evidence against you (which is not the case now because you pled guilty). In a drunk driving case, those kinds of post-arrest interviews usually do not occur. Miranda rights have nothing to do with "failure to ask for permission to withdraw blood"; in a drunk driving case, the blood is normally drawn under the implied consent statute (after you were advised of THOSE rights) or through a search warrant (a judge's order that the blood be taken even w/out your consent).

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Answered on 8/26/13, 10:28 am

William Morrison Action Defense Center

It's all true. You do remember refusing to take the breathalyzer, don't you? Since OWI is a traffic offense, it will stay on your record until you die.

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Answered on 8/26/13, 8:20 pm

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