State Summary

The Delaware Second Chance Expungement Gap

Key Findings


Community Organization Partners:


Abstract

Disclaimer

The following is a summary of the law prepared by law students under the supervision of a professor based on consulting multiple sources. It is only up to date as of the dates shown below and in many cases we had to make judgment calls. Therefore we encourage you to also consult the sources below, as well as the Restoration of Rights Project that include summaries of the law for all 50 states and US territories.

Source: Delaware CCRC (8/18/2020) / Del. Code Ann. tit. 11, §§ 4372, et seq (2020) / Delaware Court Guide (2020)

Summary of the Law

CONVICTIONS:

  1. Misdemeanors:
    1. Expungement mandatory for convictions for 1 or more violations arising from same case after 3-year waiting period from date of conviction if clean (no convictions prior or subsequent to conviction). § 4373(a)(2)

    2. Expungement mandatory for convictions for 1 or more misdemeanors and/or violations arising from same case after 5-year waiting period from date of conviction if clean (no convictions prior or subsequent to conviction). § 4373(a)(3)

    3. Expungement discretionary for convictions for 1 or more misdemeanors not listed in § 4373(b) arising from same case, after 3-year waiting period starting from date of conviction or release from incarceration, whichever is later, and clean (no prior or subsequent convictions) upon showing of manifest injustice by petitioner. . § 4374(a)(1).

    4. Expungement discretionary for convictions for 1 or more misdemeanors listed in § 4373(b), arising from same case, after 7-year waiting period starting from date of conviction or release from incarceration, whichever is later, and clean (no prior or subsequent convictions) upon showing of manifest injustice by petitioner. . § 4374(a)(2).

    5. Expungement for pardoned misdemeanors and felonies with no waiting-period or clean requirement. § 4375(a).

    6. Expungement for cannabis possession class B misdemeanor if only offense and person is under 21, upon turning 21 and completion of sentence with no pending charges. Section 4764(j)

    7. Expungement discretionary for convictions that have a child or vulnerable adult victim or are domestic violence related.

  2. Felonies:

    1. Expungement discretionary for convictions for a single non-violent felony (defined by Title 11 4201(c)) after 7-year waiting period starting from date of conviction or release from incarceration, whichever is later, and clean (no prior or subsequent convictions)upon showing of manifest injustice by petitioner. § 4374(a)(3).

  3. Not eligible:

    1. Expungement not available for offenses listed under § 4372(f)(1)-(5)

    2. Mandatory expungement not available for offenses listed under § 4373(b)(1)-(5)

    3. Discretionary expungement not available for offenses listed under § 4374(b)(1)-(4)

    4. Expungement for pardoned offenses not available for offenses listed under § 4375(b).

    5. Not eligible if any pending case, currently serving a sentence, prior expungement within the last 10 years.

  4. Lifetime or other Limits: Appears to be limited to once per lifetime for convictions due to eligibility element of “no prior convictions”, with exceptions for convictions listed under § 4372(g) and (h). Unclear for non-convictions, appear there is no limit.

  5. Treatment of Multiple Convictions from the Same Incident: Treated as single conviction, but “the requirement of “no prior or subsequent convictions” is ambiguous where relief is authorized for multiple convictions.” (CCRC Profile)

  6. LFO payment required for sentence completion: Yes but may be waived and yes for non-convictions given diversion. Del. Code Ann. tit. 16 § 4767

  7. Other Unmodeled Criteria or details: Juvenile, human trafficking. Note that there was a broad expansion in 2019 with mandatory and discretionary expungement criteria. Also, records may be destroyed once person reaches age of 80 or 75 with no prior criminal activity for prior 40 years. Del. Code Ann. tit. 11, § 8506(c).

NON-CONVICTIONS:

  1. Expungement are mandatory upon petition for all cases where charges are “terminated in favor of the accused” (acquittals of all charges, a nolle prosequi on all charges, dismissal after probation before judgment, dismissal of all charges, and arrests that are not charged within 1 year of the arrest) with no wait-period. Del. Code tit. 11, § 4372(b)

  2. Expungement available for successful completion of deferred adjudication Del. Code Ann. tit. 11, § 4218 or first-time controlled substance offenses where entered into a diversion program, upon completion of sentence. Del. Code Ann. tit. 16 § 4767

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