Del. Code tit. 11 § 4372

Current through 2021 Legislative Session Act 135
Section 4372 - Applicability; definitions; effect of expungement
(a) This subchapter applies to all criminal cases brought and convictions entered in a court in this State.
(b) For the purposes of this subchapter, a case is "terminated in favor of the accused" only if 1 or more of the following occurs:
(1) The accused is acquitted of all charges related to the case.
(2) A nolle prosequi is entered on all charges related to the case.
(3) The accused is placed on probation before judgment, fulfills the terms and conditions of probation, and the court enters an order discharging the person from probation.
(4) All charges related to the case are otherwise dismissed.
(5) The accused is acquitted of 1 or more charges related to the case, and the other charges are dismissed by the entry of a nolle prosequi or otherwise.
(6) The accused is arrested for the commission of 1 or more crimes and no charges related to the matter for which the person was arrested are filed in any court within 1 year of the arrest.
(c) For the purposes of this subchapter:
(1) "Case" means a charge or set of charges related to a complaint or incident that are or could be properly joined for prosecution.
(2) "Criminal justice agencies" means as defined under § 8502 of this title.
(3) "Expungement" means that all law-enforcement agency records and court records relating to a case in which an expungement is granted, including any electronic records, are destroyed, segregated, or placed in the custody of the State Bureau of Identification, and are not released in conjunction with any inquiry beyond those specifically authorized under this subchapter.
(d) Except as otherwise provided under § 4376(a) of this title, a person is not required to disclose, nor should the person be asked to disclose, to anyone for any purpose that the person was arrested for, charged with, or convicted of an offense for which records have been expunged under this subchapter or any other provision of this Code.
(e)
(1) If a court issues an order expunging records, all the criminal records relating to a case specified in the order must, within 60 days of the order, be removed from the court's files and placed in the control of the Supervisor of the State Bureau of Identification or otherwise segregated and kept in a manner that ensures that they are not open to public inspection or disclosure. The court may retain a non-public record of expungement orders. The court shall send a copy of its order of expungement to the Bureau, and shall consult with the Bureau to develop a standard form of order for expungements. Except as otherwise provided under § 4376 of this title, the Supervisor of the Bureau shall retain control over all expunged records and shall ensure that the records or information contained in the records are not released for any reason.
(2) If the State Bureau of Identification determines that expungement is mandated under this subchapter, or receives an expungement order from a court, it shall promptly notify all courts and law-enforcement agencies where records pertaining to the case are located or maintained, and any court where the case was terminated, disposed of, or concluded. A court or law-enforcement agency which receives a notice of expungement from the Bureau shall provide the Bureau with written confirmation of the completion of the expungement. Where an expungement of a conviction is granted, all arrest records associated with any charge in that case must also be expunged.
(3) If a court orders expungement, the State Bureau of Identification shall provide the court that entered the order with written confirmation of the execution of the order. The Bureau shall promptly notify the court if it is unable to comply with any order issued under this subchapter and state the reasons why it is unable to comply.
(4) In response to a request from a non-law-enforcement officer for information or records on the person who received an expungement, all law-enforcement officers, law-enforcement agencies, and courts shall reply, with respect to the proceedings which are the subject of the order, that there is no record.
(f) Exclusions.
(1) A person is not eligible for an expungement while the person has pending criminal charges, except under paragraph (b)(6) of this section.
(2) Except as otherwise provided under § 4374(i) of this title, offenses under Title 21, or their equivalent, are not eligible for expungement under § 4373 or § 4374 of this title.
(3) A conviction for 1 of the following may not be expunged under § 4373 or § 4374 of this title:
a. Vehicular assault in the second degree under § 628A of this title.
b. Incest under § 766 of this title.
c. Unlawful sexual contact in the third degree under § 767 of this title.
d. Coercion under § 791 of this title.
e. Unlawfully dealing with a child under § 1106 of this title.
(4) A person is not eligible for an expungement of a felony conviction under this subchapter if the person is convicted of the felony after the date an expungement of a prior felony conviction was granted under this subchapter. For any other expungement of a conviction, a person is not eligible if the person has been granted an expungement of a prior conviction in the previous 10 years. This paragraph (f)(4) of this section does not apply to a person seeking an expungement under § 4373(a)(1) of this title.
(5) A person is not eligible for expungement under this subchapter if that person is currently serving a term of incarceration, parole, or probation.
(g) A prior or subsequent conviction under § 904(e) or (f) of Title 4 (regarding underage possession or consumption of alcohol) or a conviction under § 4764(c) of Title 16 (regarding underage possession of personal use quantity of marijuana) does not operate as a bar to eligibility for discretionary or mandatory expungement under this subchapter.
(h) A prior or subsequent conviction of a Title 21 offense does not operate as a bar to eligibility for discretionary or mandatory expungement under this subchapter.
(i) Nothing in this subchapter is intended to operate to expand or limit the availability of expungement under any other part of the Code.
(j) The grant of an expungement under this subchapter does not nullify any provision of an active protection from abuse order.
(k) The grant of an expungement under this subchapter does not result in the automatic removal of an individual from the Child Protection Registry, established under Subchapter II of Chapter 9 of Title 16, or the Adult Abuse Registry, established under § 8564 of this title. The fact an expungement has been granted may be considered with other relevant evidence as part of a petition for removal from the Child Protection Registry under § 929 of Title 16 or the Adult Abuse Registry under regulations adopted under § 8564(f) of this title.
(l) To be eligible for an expungement under this subchapter, all fines, fees, and restitution associated with a conviction must be paid. However, if an outstanding fine or fee is not yet satisfied due to reasons other than wilful noncompliance, but the person is otherwise eligible for an expungement, the court may grant the expungement and waive the fines or fees or convert outstanding financial obligations to a civil judgement.

11 Del. C. § 4372

Amended by Laws 2019, ch. 83,s 2, eff. 12/27/2019.
Amended by Laws 2013, ch. 211,s 2, eff. 4/10/2014.
62 Del. Laws, c. 317, §2; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 150, § 5; 76 Del. Laws, c. 392, § 1.;