Expungement of Criminal Records – General – Delaware

1. What is an expungement?

 The process of legally destroying, obliterating or striking out records or information in files, computers and other depositories relating to criminal charges.

 2.  Do the records just “disappear”?

 No. The records cannot be accessed for general law enforcement or civil use. However, under certain exceptional situations, the expunged records can be searched, retrieved, and used, but this occurs only in certain circumstances. Records may be accessed by law enforcement officers if the person is a suspect in a felony or applying for law enforcement job. Physical destruction of fingerprint, photos, and Department of Justice records is not required. 11 Delaware Code § 4374, § 1026.

 What records may be expunged?

   Normally, records in any court, correctional facility, law enforcement or criminal justice agency will be affected.  Specifically, all indicia of arrest and all applicable police and court records relating to the charge. Records of juvenile adjudications not eligible for expungement are those involving the following crimes: 
Second degree murder, first degree arson, and first degree burglary. § 1001 (c).

 The effect of an expungement is that one’s criminal record of arrest and/or conviction is erased and legally deemed not to have occurred.

  3.  Who is eligible for an expungement?

 1. Juveniles who was charged with an act of delinquency under the age of 18 which was later dropped, dismissed, nolled, or otherwise disposed of, and  either a) had no further adjudications in the three years after such adjudication or b)presents documentation of intent to enlist in the U.S. armed services. § 1001. 
2. Adults charged with a crime in Family Court who are acquitted or has charges dismissed or nolled. § 1025. 
3. Adults charged with a crime in Criminal Court who are acquitted or has charges dismissed or nolled. § 4372. Mandatory expungement pursuant to § 4373 shall not be applicable to the records of any case in which the defendant was charged with one or more of the following crimes:

    (1) Any misdemeanor designated as a sex offense pursuant to 11 Del.C. Section 761;

    (2) any misdemeanor set forth in subpart A of subchapter II of Chapter 5 of Title 11 of this Code;

    (3) Unlawful Imprisonment pursuant to 11 Del. C. Section 781;

    (4) Interference with Custody pursuant to 11 Del. C. Section 785;

    (5) Coercion pursuant to 11 Del C. Section 791;

    (6) Trespassing with Intent to Peer or Peep, pursuant to 11 Del.C. Section 820;

    (7) Endangering the Welfare of a Child, pursuant to 11 Del.C. Section 1102;

    (8) Endangering the Welfare of an Incompetent Person, pursuant to 11 Del.C. Section 1105;

    (9) any misdemeanor set forth in subparts A, B, C or F of subchapter VI of Chapter 5 of Title 11 of this Code;

    (10) any misdemeanor or violation set forth in Chapter 85 of Title 11 of this Code;

    (11) Patient Abuse, pursuant to 16 Del.C. Section 1136;

    (12) Operation of a Vessel or Boat While Under the Influence, pursuant to 23 Del.C. Section 2302.

   
4. Any individual who receives a Delaware gubernatorial pardon shall, as an effect of said pardon, automatically have that individual’s juvenile record, if any, expunged.

 How do I get an “Expungement”?

1) Juveniles charged with delinquency in Family Court may themselves, or through a legal guardian, petition the court setting forth all the relevant facts in the matter and requesting expungement of all indicia of arrest and all applicable police and court records relating to the charge. If applicable, written documentation of intent to enlist in the armed services by the applicable military authority in said armed forces must be provided. 
Upon reading and filing such petition the Court may by order fix a time not less than 10 nor more than 30 days thereafter for the hearing of the matter, a copy of which order shall be served in the usual manner upon the Attorney General within 5 days from the date of such order and at the time so appointed the Court shall hear the matter and if no material objection is made and no reason appears to the contrary, an order may be granted directing the Clerk of the Court to expunge from the records all evidence of such adjudication. § 1001. 
2) Adults charged with crimes in Family Court may file a petition in the Family Court in the county where the case was terminated, disposed of or concluded. A copy of the petition shall be served on the Attorney General, who may file an objection or answer to the petition within 30 days after being served. If necessary, a hearing will be held. The petition will be granted if the court finds no other criminal convictions exist and that justice requires the records should not be deemed to exist nor the information within to be disseminated. § 1025. 
3) If a person is charged with the commission of a crime which is designated as a misdemeanor or violation in Titles 4, 7, 11, 16 or 23 of this Code, excepting those crimes specifically exempted in subsection (c) of this Section, and the case is terminated in favor of the accused, and the person has not previously been convicted of another criminal offense, upon an appropriate request to the State Bureau of Identification by such person the police records and court records, including any electronic records, relating to the charge or charges shall be expunged if the person has not been convicted of any crime since the date upon which the case was terminated in favor of the accused. § 4372, § 4373.