Sealing and Expunging Criminal Records in Delaware

In Delaware, criminal records are available to interested members of the public on request. The unrestricted availability of these records may have significant implications for the individuals involved. People with public criminal records may experience a loss of civil rights and become ineligible for credit, housing, business loans, employment, and educational benefits. Sealing and expunging criminal records allow the record owners to be re-integrated into society. If the court seals or expunges a criminal record, the case record will no longer be part of the subject’s criminal history.

The removal of criminal records restricts the records from public search databases and state-run background checks. The court treats the offense as though it never happened, and the case party or record subject may say that the record does not exist upon inquiry.

The Difference Between Sealing and Expunging Criminal Records

In many states in the US, sealing and expungement mean different things and, in some cases, apply to various records. However, in Delaware, sealing and expungement have the same effect. When the court grants an order of expungement for a criminal record, the court and other law-enforcement bureaus and agencies destroy, separate, or seal the record. It is no longer accessible to the public or released to unauthorized persons or for uses not permitted by law (Del. Code tit. 11, § 4372). There are different types of expungement in Delaware.

• Mandatory expungement applies to records of less serious offenses such as violations and misdemeanors related to the same case. The case party or subject record must have no prior or pending convictions to be eligible for mandatory expungement. A mandatory expungement also applies to non-conviction records such as records of dismissed cases, cases of arrests that do not result in charges or prosecution within one year, terminated cases, and cases where the accused is acquitted. The State Bureau of Identification grants mandatory expungements.
• If the court determines that expungement is a matter of justice to the petitioner, the court will grant a discretionary expungement. Suppose a court determines that leaving the records unsealed or publicly accessible may cause injustice or hardship to the petitioner (Del. Code tit. 11, § 4374). In that case, petitioners generally have to prove that there is indeed injustice or hardship at play through relevant evidence and testimony. Discretionary expungement applies to convictions of non-violent felony crimes provided that the petitioner has no prior or pending convictions. It also applies to misdemeanor crimes that are not under the mandatory expungement umbrella, provided that the misdemeanors are related to one case, and the petitioner has no prior or pending convictions. A three to seven-year wait period applies to misdemeanors under this category.

Additionally, pardoned crimes are eligible for discretionary expungement. However, murder and rape do not qualify for expungement.

Records that are considered public may be accessible from some third-party websites. Operating independently of any federal, state or local agency, such websites may simplify the search process as they are not limited by geographic location. In addition, third-party sites typically have search engines that can be used for filtering specific or multiple record(s). To use third-party or government websites, interested parties may need to provide:

• The name of the person involved in the record, unless said person is a juvenile
• The location or assumed location of the record or person involved. This includes information such as the city, county, or state that the person resides in or was accused in

However, third-party sites are independent of government sources and are not sponsored by these government agencies. Because of this, record availability cannot be guaranteed.

How to Seal a Criminal Record in Delaware

To seal or expunge a criminal record in Delaware, case parties or record subjects may apply through the State Bureau of Identification or the sentencing court. However, those with pending criminal charges and persons who have been granted criminal record expungements in the previous ten (10) years are not eligible for expungement. Persons under probation, parole, or still serving terms of imprisonment are also not eligible for expungement. The court cannot expunge the following offenses:

• Motor vehicle offenses such as vehicular assault
• Coercion
• Unlawful sexual contact
• Unlawfully dealing with a child.
• Incest

For mandatory expungements, record subjects may apply for expungement through the State Bureau of Identification. To be eligible for compulsory expungement, petitioners are generally required to meet the following requirements:

• The petitioner was arrested for or charged with an offense, but the court terminated the case.
• The petitioner was convicted of one or more violations related to the same case, with no prior or pending convictions, and three years have passed since the conviction.
• The petitioner was convicted of a misdemeanor or a misdemeanor combined with a violation, has no subsequent or prior convictions, and five years have passed since the conviction.

For discretionary expungements, record subjects may file a motion with the sentencing court to expunge criminal history records. Typically, the court disposes of petitions without hearings except in cases where it deems a hearing necessary. In addition, the following requirements must generally be met:

• The petitioner was convicted of one or more eligible misdemeanors, has no subsequent or former convictions, and three (3) years have passed since the conviction.
• The petitioner was convicted of misdemeanors listed in Del. Code tit. 11, § 4373(b), has no subsequent or former convictions, and seven (7) years have passed since the fulfillment of the sentence requirements.
• The petitioner was convicted of an eligible felony, has no prior or subsequent convictions, and seven (7) years have passed since the fulfillment of sentence requirements.
• The petitioner was convicted of an eligible offense and pardoned.

What Crimes Can Be Expunged in Delaware?

Apart from the general exclusions to expungement, the court cannot expunge the following offenses:

• Domestic violence misdemeanor cases
• Offenses against the vulnerable
• Offenses against children
• Unlawfully administering drugs
• Sexual harassment
• Indecent exposure
• Organized retail crime
• Hate crime
• Invasion of privacy
• Permitting prostitution

Del. Code tit. 11, § 4373 lists all other exclusions.

Similarly, the following felony offenses are not eligible for discretionary expungement:

• Aggravated menacing
• Assault by abuse
• Manslaughter
• Murder
• Promoting suicide
• Sexual extortion
• Home invasion
• Sexual solicitation of a child
• Riot
• Stalking
• Resisting arrest with force or violence
• Felony convictions that involve physical or sexual assault crimes

Other exclusions include crimes listed in Del. Code tit. 11, § 4201c, Del. Code tit. 16, § 1136, and Del. Code tit. 31, § 3913.

How to Expunge Criminal Records in Delaware

When filing a petition for expungement, petitioners are typically advised to submit the motion in the family court for cases filed in the family court. For cases filed outside the family court, petitioners may file the county’s superior court’s motion where the case was heard or filed. The petitioner must attach an official copy of the personal criminal history to the motion, as the court may reject motions submitted without the petitioner’s criminal history record. When the petitioner has filed the motion in court, the person must serve a copy of the motion to the Attorney General. The Attorney General typically then contacts the case victim to inform the victim of the expungement petition and inform the court of the victim’s position.

Except in cases where the court finds a hearing necessary, the court disposes of expungement motions without a hearing. During a hearing, petitioners set out to prove that the record’s existence in the public domain constitutes a hardship or injustice to the subject. If the court grants the expungement order, all records relating to the case, including arrest records, will be expunged. The State Bureau of Identification will then notify federal law enforcement of the expungement. The court may set a filing fee for expungement motions.

Do Sealed Records Show up In Delaware Background Checks?

No, sealed records do not show up in Delaware background checks. According to state laws, it is unlawful to have access or request access to expunged records without a court order. Except for agencies or persons permitted by law, expunged records are sealed, placed in the State Bureau of Identification’s custody, and inaccessible to the public.

Who Can See Sealed Criminal Records in Delaware?

Sealed or expunged criminal records in Delaware are not typically destroyed. Such records are sealed and inaccessible to unauthorized persons. Persons who may access criminal records in Delaware include:

• Subjects of the record
• Law enforcement officers investigating criminal activity
• Law enforcement agencies for employment purposes
• Criminal justice agencies involved in licensing
• The Courts
• State Bureau of Identification
• Persons with a court order

How to Obtain Sealed Records in Delaware

Sealed records in Delaware are only accessible to persons authorized by the court or the law. Authorized persons interested in obtaining sealed records may contact the record custodian in the court where the case was filed. Alternatively, such persons may contact the State Bureau of Identification to request criminal history records. The courts and the State Bureau of Identification may require requesting parties to provide photo identification.