Expungement Petition

DELAWARE EXPUNGEMENT ROUTE AND PETITION PREPARATION GUIDE

DO NOT FILE A COURT PETITION UNTIL SBI DETERMINES THE ROUTE. Delaware separates automatic and application-based mandatory expungement from discretionary court expungement. Obtain a certified State Bureau of Identification criminal history and SBI eligibility letter before preparing a discretionary petition.

1. ROUTE SELECTION

☐ Automatic mandatory expungement — 11 Del. C. § 4373A. Beginning August 1, 2024, SBI identifies eligible § 4373 cases monthly. Check whether SBI has already completed the expungement.

☐ Mandatory expungement by SBI application — 11 Del. C. § 4373. Submit the request to SBI rather than filing a discretionary petition in court. Multiple eligible cases or arrests may be combined in one SBI application.

☐ Discretionary adult expungement — 11 Del. C. § 4374. File the current court petition only when SBI's eligibility determination or the record shows that court review is required.

☐ Discretionary expungement after an unconditional pardon — 11 Del. C. § 4375. Use the current post-pardon court process and check the statutory excluded convictions.

☐ Juvenile expungement — 10 Del. C. §§ 1014 through 1019. Use the current Family Court forms 282M for mandatory juvenile expungement or 282D for discretionary juvenile expungement. Do not use the adult Title 11 petition.

2. CERTIFIED CRIMINAL HISTORY AND SBI REVIEW

☐ Schedule fingerprinting through the current SBI/IdentoGO expungement service.

☐ Obtain the certified Delaware criminal-history report.

☐ Obtain SBI's expungement eligibility cover letter.

☐ Confirm the report is no older than the period required by the current court instructions. The Superior Court packet states that the report expires after 45 days.

Criminal-history report date: [__/__/____]

SBI letter date: [__/__/____]

SBI determination:

☐ Already automatically expunged

☐ Eligible for mandatory SBI expungement

☐ Requires discretionary court petition

☐ Ineligible / further review required

3. GENERAL ELIGIBILITY SCREEN — 11 DEL. C. § 4372

A. Favorable termination

A case is terminated in favor of the accused when one of the statutory results applies:

☐ Acquittal of all related charges

☐ Nolle prosequi on all related charges

☐ Successful probation before judgment followed by discharge

☐ Dismissal of all related charges

☐ Acquittal of one or more charges and dismissal or nolle of the remaining charges

☐ Arrest with no related court charge filed within one year

☐ Case at least seven years old with no disposition or an unknown, unobtainable, or pending disposition, no active warrant, no documented activity within the last twelve months, and no charge not terminated in the accused's favor

B. General exclusions

☐ No disqualifying pending criminal charge exists. Review the narrow statutory exceptions for specified alcohol, marijuana, and Title 21 allegations.

☐ Applicant is not serving incarceration, parole, or probation.

☐ The requested record is not an excluded Title 21 matter, unless it is one of the traffic offenses specifically permitted by § 4374(i).

☐ The conviction is not one of the convictions categorically excluded by § 4372(f)(3).

☐ The prior-expungement limitations in § 4372(f)(4) do not bar relief.

☐ All restitution associated with a conviction is paid.

☐ All fines and fees are paid, or the court is asked to apply the non-willful-noncompliance relief authorized by § 4372(l), including waiver or conversion to a civil judgment where legally available.

☐ No other § 4372 exclusion applies.

4. MANDATORY SBI EXPUNGEMENT — § 4373

A. Categories that do not require a clean prior/subsequent record

Subject to the remaining statutory exclusions, SBI must expunge all charges in the eligible case when:

☐ The case terminated in favor of the accused.

☐ The case resulted only in violation conviction(s) and three years have passed since conviction.

☐ The conviction was for qualifying marijuana possession or drug-paraphernalia possession.

☐ The conviction was for qualifying underage alcohol possession or consumption.

B. Categories requiring no disqualifying prior or subsequent conviction

☐ Eligible misdemeanor conviction(s), or eligible misdemeanor and violation conviction(s), in one case; five years have passed since conviction.

☐ Drug possession under 16 Del. C. § 4756; five years have passed since conviction.

☐ Felony specifically listed in § 4373(a)(2)c; ten years have passed since conviction or release from incarceration, whichever is later.

C. Mandatory-route exclusions

Review § 4373(b), including domestic-violence offenses, offenses involving a child or vulnerable adult, specified misdemeanor groups, and each individually listed misdemeanor.

☐ SBI application and fee submitted under current SBI instructions.

☐ Copy of SBI determination and final confirmation retained.

5. DISCRETIONARY COURT ELIGIBILITY — § 4374

A. Waiting-period route

Measure from the date of conviction or release from incarceration, whichever is later, unless the statute states otherwise.

Applicable route: [________________________________]

Conviction date: [__/__/____]

Release-from-incarceration date: [__/__/____]

Eligibility date: [__/__/____]

☐ The conviction is not excluded by § 4374(b), including a Title 11 felony listed in § 4201(c), 16 Del. C. § 1136, 31 Del. C. § 3913, or a felony involving physical or sexual assault as defined in 31 Del. C. § 309.

B. Correct court

☐ Family Court: every charge and conviction sought to be expunged was disposed of in Family Court. File in the county where the most recent case terminated.

☐ Superior Court: at least one charge or conviction was disposed of outside Family Court. File in Superior Court in the county where the most recent case terminated. Matters originating in the Court of Common Pleas or Justice of the Peace Court are filed with the Superior Court Prothonotary.

C. Current form set

☐ Superior Court: CIV_EXP_02_A petition and the current proposed-order form.

☐ Family Court adult: Form 281 petition and current proposed order.

☐ Additional-charge sheet included if necessary.

6. DISCRETIONARY PETITION FACTS

Caption

IN THE [SUPERIOR / FAMILY] COURT OF THE STATE OF DELAWARE

IN AND FOR [NEW CASTLE / KENT / SUSSEX] COUNTY

Civil Action / Petition Number: [________________________________]

Applicant information

Records requested

Manifest-injustice showing

Under § 4374(f), the petitioner must allege specific facts and prove by a preponderance of the evidence that continued existence and possible dissemination of the record causes or may cause circumstances constituting manifest injustice.

Employment effect: [________________________________]

Housing, education, licensing, or credit effect: [________________________________]

Time elapsed and conduct since the case: [________________________________]

Rehabilitation, treatment, education, or community service: [________________________________]

Family and community responsibilities: [________________________________]

Other specific hardship: [________________________________]

Why expungement is consistent with public safety and justice: [________________________________]

7. REQUIRED ATTACHMENTS, SERVICE, AND RESPONSE

☐ Certified SBI criminal history attached. The court must summarily reject a § 4374 petition without it.

☐ SBI eligibility cover letter attached.

☐ Proposed order attached.

☐ Petition signed and notarized as directed by the current court packet.

☐ Copy of the petition served on the Attorney General.

The Attorney General may object or answer within 120 days after service and must contact a qualifying victim to obtain the victim's position. The court generally decides the petition without a hearing unless it believes a hearing is necessary.

Service date: [__/__/____]

Method and address: [________________________________]

Proof of service: [________________________________]

8. REQUESTED RELIEF

Petitioner requests that the Court:

1. Find the petition eligible under 11 Del. C. § [4374 / 4375];
2. Find by a preponderance of the evidence that continued existence and possible dissemination of the record causes or may cause manifest injustice;
3. Order expungement of all court and law-enforcement records related to the eligible case or cases; and
4. Transmit the order to SBI for implementation under § 4372(e).

9. EFFECT OF EXPUNGEMENT

Under § 4372, expungement places records outside public inspection and disclosure and generally permits the person not to disclose the covered arrest, charge, or conviction, subject to § 4376. A court order must be implemented within sixty days through the statutory SBI notice and confirmation process.

Expungement does not automatically:

• Nullify an active protection-from-abuse order;
• Remove a person from the Child Protection Registry or Adult Abuse Registry; or
• Destroy all fingerprints, photographs, DNA, Department of Justice records, or court records that the statute permits to be retained under restricted conditions.

10. SIGNATURE AND VERIFICATION

I certify that the information in the official petition and attachments is true and complete to the best of my knowledge.

Signature: [________________________________]

Printed name: [________________________________]

Date: [__/__/____]

Notary or authorized officer: [________________________________]

Commission expiration, if applicable: [________________________________]

SOURCES AND REFERENCES

• Delaware Code, Title 11, Chapter 43, Subchapter VII
• Delaware Courts — Expungement/Pardon Help
• Delaware Courts — Expungement Forms
• Delaware Superior Court — Expungement Instructions
• Delaware Family Court — Adult Expungement Guide