What is Expungement?
Delaware offers “expungement” of some adult criminal records. Expungement deletes your criminal record and restores you to the status you had before the offense. In Delaware, the state hides the record so no one, other than judges and law enforcement, can see it. Anyone else, such as employers, landlords, banks, and so on, cannot see an expunged record.
Delaware law allows courts to seal juvenile records, so these records can be seen only by a court order.
Delaware offers two types of expungement:
- A mandatory expungement, which is handled by the Delaware State Bureau of Investigation (SBI); and
- A discretionary expungement, which is ordered by a court.
The SBI must expunge a record if it fits certain criteria. A court does not have to expunge a record, so the decision is up to the judge.
Who is Eligible for Expungement?
You are eligible for a mandatory expungement by the Delaware State Bureau of Investigation (SBI) if your situation fits any one of these three criteria:
- You were arrested or charged with one or more violations, misdemeanors, or felonies, but the case "terminated in your favor", which means any of the following is true:
- You were acquitted;
- The charges were dismissed;
- You received probation with discharge;
- You were arrested but not charged within 1 year;
- You were acquitted with other charges dismissed; or
- The prosecutor did not pursue your case (nolle prosequi).
- You were convicted of one or more violations arising out of the same case, three years have passed since the date of conviction, and you have no other convictions. A conviction for underage alcohol or marijuana possession does not count.
- You were convicted of one or more misdemeanors or violations, arising out of the same case, five years have passed since the date of conviction, and you have no other convictions.
You are not eligible for mandatory expungement if your offense appears on the list of exclusions or "Exhibit A" on page 11 of Delaware's "Adult Expungement Instruction Packet". To access the packet, visit the Delaware Courts website here: Adult Expungement Instruction Packet.
You are eligible for discretionary expungement by a court if your conviction meets any of the three criteria:
- You were convicted of one or more offenses, arising out of the same case, that are not excluded by Delaware law, three years have passed since the date of conviction or release whichever is later, and you have no other convictions. For a complete list of the 42 offenses that cannot be expunged under this option, see "Exhibit A," found of page 11 of the "Adult Expungement Packet" on the Delaware Courts website here: Adult Expungement Instruction Packet.
- You were convicted of one or more misdemeanors, arising out of the same case, seven years have passed since your conviction or release, you have no other convictions, and the offense is listed as an exclusion on "Exhibit A," found of page 11 of the "Adult Expungement Packet" on the Delaware courts website here: Adult Expungement Instruction Packet.
- You were convicted of a single felony that was not a physical or sexual assault crime, and seven years have passed since your conviction or release.
Delaware law on expungement is complicated. Read the complete Adult Expungement Packet before you start the process. To access the packet, visit the Delaware Courts website here: Adult Expungement Instruction Packet.
If you are uncertain whether you are eligible for expungement, consult an attorney.
What Effect Does Expungement Have?
Once the Delaware SBI grants a mandatory expungement, the SBI removes the record from view. Once a Delaware court orders a discretionary expungement, it orders all state law enforcement agencies and courts to expunge their records. This means that the records are shielded from view. No one in the "public", such as employers, landlords, financial institutions, etc., can see the record.
Your conviction, dismissal, or acquittal disappears. And in most cases, you can legally deny being arrested or convicted.
When Can I Apply for Expungement?
You can apply for expungement of a conviction only after you have completed your sentence. You must count from whatever date is the most recent, such as the date of conviction, completion of sentence, completion of probation or parole, or final payment of restitution. Then you must wait for several years.
You can apply to the SBI for mandatory expungement under the following circumstances:
- If the case was "terminated in your favor", such as acquittal, nolle prosequi, dismissed, etc., there is no wait.
- If you were convicted of one or more violations in the same case, you must wait three years.
- If you were convicted of one or more misdemeanors in the same case, you must wait five years.
You can apply to a court for discretionary expungement under the following circumstances:
- If you were convicted of one or more offenses, arising out of the same case, and the offenses are not excluded by Delaware law in Exhibit A, you must wait three years after conviction or release, whichever is later.
- If you were convicted of one or more misdemeanors, arising out of the same case, and any of the offenses is listed as excluded in Exhibit A, you must wait seven years.
- If you were convicted of one felony that is not a physical or sexual assault crime, you must wait seven years. However, if you receive an unconditional pardon, there is no wait to ask for a discretionary expungement.
How Do I Apply for Expungement?
To apply for mandatory expungement, contact the SBI at (302) 739-5884 and ask for mandatory expungement. The SBI will determine whether you are eligible and if you are, they will send you a letter with instructions.
Here are the seven steps to apply for a discretionary expungement:
- File a petition for expungement with the court you received your conviction. To access the expungement filing forms and instructions, visit the court clerk or the court's website, or review the "Adult Expungement Instruction Packet" here: Adult Expungement Instruction Packet.
- Get your criminal history report from the SBI. For information on how to access your criminal history record, visit the Delaware State Police website here: Obtaining a Certified Delaware Criminal History. You can also contact the SBI at (302) 739-2528 for New Castle and Sussex Counties, or (302) 739-5871 for Kent County.
- Create a packet with the two completed forms, including your certified criminal-history record, and the SBI letter that came with your record.
- Make copies of everything.
- File the original packet with the court clerk, either in person or by mail.
- Pay the $70.00 filing fee. Acceptable form of payment include a check made payable to "State of Delaware".
- Wait. The court will send a copy of your petition packet to the attorney general. The attorney general has 120 days to respond. If the attorney general opposes your petition, you have 30 days to respond. After that, the court will send your file to a judicial officer. That person decides if a hearing is necessary.
If the judicial officer decides you are eligible for a discretionary expungement, your case will go to a judge. The judge will grant your petition if he or she decides that the harm to you caused by releasing your record is a "manifest injustice." That means the record is causing you hardship, such as difficulties finding a job or getting into college. The court will notify you when the judge has decided what to do.
More Information About Expungement
For helpful information about expungement in Delaware, visit the State of Delaware website here: State of Delaware - APEX Program. APEX is a Delaware state program run by the Division of Social Services and the Division of Vocational Rehabilitation. APEX can guide you through the expungement process and help you with getting documents and completing the paperwork to file.