Fingerprint & Arrest Cards

I recently had a client, who when she was 20 years old was charged and pleaded guilty to retail fraud third degree. Not represented, the prosecutor offered a plea deal under MCL 771.1 with non-reporting probation and dismissal of the charges after 12 months. My client accepted the deal after being told that after the dismissal, there would be no public record of the conviction and she could honestly say that she had no criminal record. Two years later, while working as an intern at an investment house in Boston, she was summoned by HR and asked why she had misrepresented herself on her internship application when she stated that her criminal record was clean. Although her internship was not immediately terminated, she was told that there would be no job offer something that was usually was offered to successful interns.
It used to be that after a defendant who had pleaded guilty with the case taken under advisement under some sort of diversionary program, once the charge was dismissed, his or her attorney or even sometimes the Judge would file Form 235, sign an order, send the order to the Michigan State Police and the fingerprint and arrest card were destroyed. So, thinking this, I filled out the form, went to the court where my client had appeared, and handed it to the clerk. She refused to accept it and referred me to a Bar Brief article written by Donald Denault of O’Reilly Rancilio P.C., Sterling Heights who worked as the city attorney. According to Mr. Denault, the rational for routinely destroying fingerprint and arrest cards grew out of a misinterpretation of MCL 28.243(8) where, “pretty much every defense attorney, and sometimes even judges themselves, would prepare Form MC 235 after any dismissal of a case.”
Unfortunately for Defendants who have had the charge dismissed after a plea of guilty, this practice came to an end with
McElroy v Michigan State Police Criminal Justice Information Center, 274 Mich App. 32, 731 NW2d 138 (2007) and recently reaffirmed in Michigan v Benjamin decided April 12, 2009. In McElroy, Defendant sought the destruction of his fingerprint card and arrest card after a domestic violence charge against him was dismissed after being sentenced under MCL 769(4)(A). McElroy filled out Form MC 235, which was signed by the Prosecuting Attorney and then the Judge then signed an order, ordering the Michigan State Police to destroy the records. After the MSP refused to destroy the records, the case ultimately went to the Michigan Court of Appeals that held that defendant (MSP) did not have a duty to return or destroy the Records because McElroy had not shown that the discharge and dismissal was based on a finding of “not guilty” as required under MCL 28.243(8).
For McElroy this meant that while the court record of his conviction is private, there still remained a public record of his arrest and fingerprints. The same held true for my client.
There is a way however to get some client’s fingerprint and arrests card hidden from public view. In my case, my client was arrested when she was 20 years old and could have been sentenced under HYTA. In an opinion rendered by then Attorney General Frank Kelly in 1978 in response to a query from Colonel Gerald L. Hough, who was the Director of the State Police. He asked for an opinion as to what was meant in the HYTA legislation “all proceedings relative to the disposition of the criminal charge”. In his opinion, Attorney General Kelly stated, “the term 'proceedings' encompasses all matters brought before a court in a specific judicial action. When read in light of the background of the act in mind, it is seen that the legislature envisaged the term 'all proceedings' as meaning all matters filed by the people and the defendant, plus all decisions and orders of the judge in a specified criminal proceeding. Consequently, the term 'all proceedings' as it is used in the Act, would include, but not necessarily be limited to, the following items in a criminal prosecution:
the arrest and fingerprint records, the complaint, the warrant, police reports and other Records and transcripts generated as the result of an arrest and prosecution of a particular youthful trainee.”
After filing a motion to allow my client to withdraw her plea more than two years earlier, the Court then allowed her to replead and be sentenced under HYTA. The biggest problem was figuring out how to resurrect a case that no longer existed, but case law indicated that if the original plea was withdrawn than everything subsequent to that plea was a nullity, so in effect the original charge remained intact even though she had already served probation. After being sentenced, she served an additional 24 hours of probation where upon the case was again dismissed. But this time under HYTA, her arrest and fingerprint cards are as hidden from public view.