Expunging or Sealing a Felony in Delaware

Mandatory: certain listed felonies (such as miscellaneous drug crimes, maintaining a drug property, possession of burglar's tools, second-degree forgery and unlawful use of a payment card) qualify ten years after conviction or release, whichever is later, and drug possession under 16 Del. C. § 4756 after five years. Discretionary: other felonies may be expunged by petition seven years after conviction or release if the person has no prior or subsequent convictions, except violent felonies listed in § 4201(c), certain other listed offenses, and felonies involving physical or sexual assault under the Beau Biden Child Protection Act. Some convictions, such as incest and second-degree vehicular assault, can never be expunged. A person convicted of a felony after a prior felony expungement is not eligible, and generally only one conviction expungement is allowed in ten years.

Mandatory expungement is requested from the State Bureau of Identification (several eligible cases can be combined in one application), and SBI also processes eligible cases automatically. Discretionary expungement requires a petition to the Family Court (if all charges were in Family Court) or otherwise the Superior Court in the county where the most recent case ended, with a copy of the person's SBI criminal history attached; petitions without it are rejected. The petitioner serves the Attorney General, who has 120 days to object and must contact any victim. Petitions are usually decided without a hearing; the court grants expungement if the petitioner proves that keeping the record would cause a manifest injustice. All fines, fees and restitution must generally be paid, and the person cannot be on probation, parole or incarcerated or have pending charges.

A person does not have to disclose, and should not be asked about, an arrest, charge or conviction that has been expunged, for any purpose (with limited exceptions such as applying to work for a law-enforcement agency). Courts and law enforcement must reply to non-law-enforcement requests that there is no record. Expunged records remain available to law enforcement investigating a crime, for checking eligibility for diversion programs and probation before judgment, for concealed-carry licensing, and for sentencing or pardon review if the person is convicted again. Expungement does not cancel an active protection-from-abuse order or automatically remove a person from the Child Protection Registry. Federal law enforcement is notified of the order. Immigration authorities may treat expunged convictions differently.