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 a crime.
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. And a person cannot apply for a felony expungement if they've had a previous felony expungement. After these requirements are met, the person must determine if the crime is eligible for expungement, what type of expungement is available, and what wait periods may be required.
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 section 4373, paragraph (b).
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).
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.
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, dismissal of the charge, order of probation with discharge, arrest without charges filed within one year, acquittal with dismissal of other charges, or a decision of the prosecutor not to pursue the case.
The following convictions qualify for mandatory expungement after a defendant completes the applicable wait period.
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):
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, "Crimes Ineligible for Expungement.")
Possession of marijuana or drug paraphernalia, as well as underage possession or consumption of alcohol, can qualify for mandatory expungement.
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.
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, "Crimes Ineligible for Expungement.")
To apply for expungement in Delaware, an offender must first obtain a copy of their criminal record, which is available at the Delaware State Police website here.
For mandatory expungements, they 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. 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.
For the most recent guidance on expungement from the Delaware courts, visit their website. (Pardons are handled by the Delaware Board of Pardons found here.)
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 a qualified criminal defense attorney. A good lawyer can guide you through each step of the process. And 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 (2021).)
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