Expunging or Sealing Adult Criminal Records in Delaware

In Delaware, eligible individuals can apply for criminal record expungement either through the State Bureau of Investigation (SBI) or the courts depending on what records the person seeks to expunge. The SBI processes applications for records that qualify for mandatory expungement. For discretionary expungement, the application must go through the court process. In either case, when a record is expunged, it will no longer be visible to the general public, including potential employers and landlords. In most cases, the person may say that they were never arrested or convicted of the expunged crime.

What Is Expungement? Who Can See Expunged Records in Delaware?

Expunged records in Delaware are not available to the public or any government agencies, except law enforcement, the courts, and, to a limited extent, criminal justice agencies.

If an offense is expunged, the law provides that the person does not have to disclose it for any reason. This means the person can say that they've never been arrested or convicted of the expunged crime when applying for a job, housing, or loans, and the record won't show up on a background check.

The expunged record is, however, available for criminal investigations, sentencing in later cases, eligibility for participation in court diversion programs, and license applications to carry concealed weapons.

Who Is Eligible for Expungement in Delaware?

Several requirements exist to be eligible for expungement in Delaware. A person cannot:

• have any pending criminal charges
• be incarcerated or under correctional supervision (like probation), or
• have outstanding fines, fees, or restitution relating to a conviction sought to be expunged.

A person can only have one felony conviction expunged in a lifetime. For most other types of expungement, the person can only get an expungement once every 10 years.

After these requirements are met, the person must determine if the crime is eligible for expungement, what type of expungement is available, and what additional wait periods may be required.

What Crimes Are Ineligible for Expungement in Delaware?

Certain crimes cannot be expunged in Delaware. These crimes include first- and second-degree murder, first- and second-degree rape, first-degree sexual abuse of a child by a person in a position of trust, manslaughter, and most vehicle offenses. Short of a pardon, the following convictions also cannot be expunged: violent felonies, second-degree vehicular assault, incest, third-degree unlawful sexual contact, coercion, unlawfully dealing with a child, or a felony involving physical or sexual assault crimes.

Another set of crimes is ineligible for mandatory expungement through the SBI, including domestic violence crimes, offenses where a victim was a child or vulnerable adult, privacy crimes, sex offenses, fraud crimes, and others. To find the complete list, check out the Delaware state law here under title 11, section 4373, paragraph (b).

What Are the Different Expungement Options in Delaware?

For eligible individuals and records, Delaware provides two avenues for expungement. Non-conviction records and convictions for low-level or nonviolent offenses may qualify for mandatory expungement. For other records, an individual may need to go before the court and request discretionary expungement, which the court can only grant if it finds that maintaining the record is a manifest injustice (a hardship).

Criminal Records That Qualify for Mandatory Expungement in Delaware

Delaware provides for several instances where expungement is mandatory and the individual won't have to apply to the court. Rather, this process goes through the SBI. Eligible individuals qualify for mandatory expungement if their situation fits one of these criteria and the crime is eligible.

Case Terminated in Favor of the Accused

If an individual was arrested for or charged with one or more violations, misdemeanors, or felonies, but the case was "terminated in their favor," they qualify for mandatory expungement.

Terminated in their favor refers to one of the following situations:

• acquittal or acquittal with the dismissal of other charges
• dismissal of the charge
• order of probation with discharge
• arrest without charges filed within one year
• a decision of the prosecutor not to pursue the case, or
• seven years pass without a resolution of the case (and there's been no case activity within 12 months).

This type of expungement is not subject to the 10-year wait period described above.

Eligible Felony, Misdemeanor, and Violation Convictions

The following convictions qualify for mandatory expungement after a defendant completes the applicable wait period and has no prior or subsequent convictions.

Defendants convicted of the following felonies are eligible after 10 years have passed since their convictions or the date of release from incarceration (whichever is later):

• miscellaneous drug crimes
• unlawful dealing in a counterfeit or purported controlled substance
• maintaining a drug property
• possession of burglar's tools
• second-degree forgery, and
• unlawful use of a payment card.

A person convicted of felony drug possession will be eligible five years after their conviction date.

Defendants convicted of one or more misdemeanors or violations from the same case, and who received no additional convictions within five years of the original conviction, qualify. Offenders convicted of one or more violations in the same case, and where three years have passed, also qualify.

(But see above, "What Crimes Are Ineligible for Expungement in Delaware?")

Drug- and Alcohol-Related Offenses

Possession of marijuana or drug paraphernalia, as well as underage possession or consumption of alcohol, can qualify for mandatory expungement.

Criminal Records That Qualify for Discretionary Expungement in Delaware

If a defendant's conviction does not qualify for mandatory expungement, discretionary expungement might be a viable alternative. To be eligible, an offender must not have any prior or subsequent convictions.

• For misdemeanors eligible for mandatory expungement, a defendant can seek discretionary expungement after three years have passed rather than wait the five years needed for mandatory expungement.
• For misdemeanors that are excluded from eligibility for mandatory expungement (§ 4373(b)), a defendant can seek discretionary expungement after seven years.
• For violations or misdemeanors eligible for mandatory expungement but the person has a prior or subsequent conviction, a defendant can seek discretionary expungement after waiting five years. (The prior or subsequent conviction cannot be an ineligible offense.)
• A defendant can petition for discretionary expungement of a single, nonviolent felony after a seven-year waiting period.

Additionally, defendants convicted of certain crimes who are subsequently unconditionally pardoned may request discretionary expungement. Certain offenses, such as manslaughter and murder in the first degree, are excluded. (See above, "What Crimes Are Ineligible for Expungement in Delaware?")

How to File for an Expungement in Delaware

To apply for expungement in Delaware, a person must first obtain a copy of their criminal record, which is available at the Delaware State Police website here.

Mandatory expungements. For mandatory expungements, a person should contact the SBI at (302) 739-5884 and request a mandatory expungement. If eligible, SBI will send a letter with further instructions and the required fees.

Discretionary expungements. Others will need to apply for a discretionary expungement through the court system by first completing an expungement packet and submitting the completed documents to the court, along with a filing fee. A judge will decide whether a hearing is necessary.

Delaware created a state-funded program called APEX where individuals can get assistance with the expungement process. You can also find court forms on the Delaware courts' website. (Pardons are handled by the Delaware Board of Pardons found here.)

Getting Legal Help to Expunge Your Records

Cleaning up a criminal history can be complicated, and the laws change often. If you're not sure whether your record qualifies for expungement in Delaware—or for advice about your personal situation—contact APEX for assistance. You can also consult a qualified criminal defense attorney. Even if you don't qualify for expungement now, keep checking for updates to the law. Delaware, like many other states, is continuing to expand expungement eligibility.

(Del. Code tit. 11 §§ 4372 to 4378 (2023).)