2023 Delaware Code › Title 11 - Crimes and Criminal Procedure › Chapter 43. SENTENCING, PROBATION, PAROLE AND PARDONS › Subchapter VII. Expungement of Criminal Records › § 4374. Discretionary expungement; application to court.

§ 4374. Discretionary expungement; application to court.
(a) Eligibility. —
Upon petition to the appropriate court designated in subsection (c) of this section, an expungement may be granted if the applicant meets 1 of the following:
(1) Was convicted of 1 or more misdemeanors other than those listed in § 4373(b) of this title relating to the same case and at least 3 years have passed since the date of conviction or the date of release from incarceration, whichever is later, and the person has no prior or subsequent convictions.
(2) Was convicted of 1 or more misdemeanors listed in § 4373(b) of this title relating to the same case and at least 7 years have passed since the date of conviction or the date of release from incarceration, whichever is later, and the person has no prior or subsequent convictions.
(3) Subject to subsection (b) of this section, was convicted of a felony and at least 7 years have passed since the date of conviction or the date of release from incarceration, whichever is later, and the person has no prior or subsequent convictions.
(4) Was convicted of 1 or more violations or misdemeanors other than those listed in § 4373(b) of this title in more than 1 case and at least 5 years have passed since the date of the most recent conviction or the date of release from incarceration, whichever is later, and the person has no other prior or subsequent convictions that would not be eligible for a mandatory expungement under § 4373 of this title standing alone. For eligibility under this paragraph, the entire case in which each conviction appears must be eligible for expungement.
(b) Exclusions. —
In addition to the exclusions under § 4372(f) of this title, a person is not eligible for discretionary expungement under this section if the person was convicted of any of the following crimes:
(1) A Title 11 felony listed in § 4201(c) of this title.
(2) Section 1136 of Title 16.
(3) Section 3913 of Title 31.
(4) A “felony conviction involving physical or sexual assault crimes” as defined in § 309 of Title 31 (regarding the Beau Biden Child Protection Act).
(c) Venue. —
If all of the charges and convictions sought to be expunged were disposed of in Family Court, a petition under this section must be filed in the Family Court for the county where the most recent case was terminated. If any of the charges or convictions were not disposed of in Family Court, a petition under this section must be filed in the Superior Court for the county where the most recent case was terminated.
(d) Jurisdiction and authority. —
(1) Where an expungement petition properly before the Family or Superior Court is granted, the expungement order applies to any record, including arrest records, relating to any charge in that case held by any court or law-enforcement agency in this State.
(2) A person may file a petition for discretionary expungement under this section and include in the petition a case that is eligible for mandatory expungement under § 4373 of this title. The Family Court or Superior Court may address both the mandatory and discretionary expungement requests when a mandatory expungement is filed with a discretionary expungement petition.
(e) After the petition requesting expungement is filed with the Superior or Family Court, the petitioner shall cause a copy of the petition to be served upon the Attorney General, who may file an objection or answer to the petition within 120 days after it is served on the Attorney General. The petitioner shall attach a copy of that petitioner's criminal history as maintained by the State Bureau of Identification to any petition requesting expungement filed under this section. The Court shall summarily reject any petition for expungement that does not include the petitioner's criminal history. Upon receipt of any petition, the Attorney General shall contact a victim of the crime at the victim's last known address or telephone number to ascertain the victim's position on the petition. The Attorney General shall provide the victim's position, if known, in the Attorney General's answer to the petition. The Attorney General shall promptly orally inform the victim of the court's decision. The Attorney General may not provide the victim with a copy of the expungement order. For purposes of this subsection, “victim” means as defined in § 9401 of this title.
(f) Unless the Court believes a hearing is necessary, petitions are to be disposed of without a hearing. If the Court finds that the continued existence and possible dissemination of information relating to the arrest or conviction of the petitioner causes, or may cause, circumstances which constitute a manifest injustice to the petitioner, it shall enter an order requiring the expungement of the law-enforcement and court records relating to the charge or case. Otherwise, it shall deny the petition. The burden is on the petitioner to allege specific facts in support of that petitioner's allegation of manifest injustice, and the burden is on the petitioner to prove such manifest injustice by a preponderance of the evidence. A petition filed by the Attorney General or the Attorney General's designee under subsection (h) of this section must be granted by the Court.
(g) The State is made party defendant to the proceeding. Any party aggrieved by the decision of the Court may appeal, as provided by law in civil cases.
(h) Notwithstanding any provision of this subchapter or any other statute or rule to the contrary, the Attorney General or the Attorney General's designee responsible for prosecuting a criminal action may petition the Court to expunge the instant arrest record of a defendant if at the time of a state motion to dismiss or entry a nolle prosequi in the case, the prosecutor has determined that the continued existence and possible dissemination of information relating to the arrest of the defendant for the matter dismissed or for which a nolle prosequi was entered may cause circumstances which constitute a manifest injustice to the defendant.
(i) (1) Notwithstanding any provision of this subchapter or any other law to the contrary, the law-enforcement agency records and the court records relating to any charge under Title 21, or in any county or municipal code, ordinance, or regulation which is the same as, or equivalent to, any Title 21 offense, may not be expunged under this subchapter unless the charge is one of those specifically enumerated in paragraph (i)(2) of this section.
(2) Discretionary expungement under this section is applicable when otherwise appropriate for the following Title 21 offenses, or any county or municipal code, ordinance, or regulation which is the same as, or equivalent to, any of the following Title 21 offenses:
a. Driving after judgment prohibited, under § 2810 of Title 21.
b. Reckless driving, under § 4175 of Title 21.
c. Operation of a motor vehicle causing death, under § 4176A of Title 21.
d., e. [Repealed.]
(j) The Superior Court and Family Court shall establish a reasonable fee schedule for the filing of a petition of expungement under this section.
(k) For purposes of determining eligibility for expungement under this section, any charge that is 7 or more years old and for which there is no disposition indicated or the disposition is listed as unknown, unobtainable, or pending shall be considered dismissed and shall not negatively affect expungement eligibility in any case. This subsection does not apply if there is an active warrant in the case or if there is documented case activity within the last 12 months.
76 Del. Laws, c. 392, §  3;  70 Del. Laws, c. 186, §  1;  77 Del. Laws, c. 348, §  2;  78 Del. Laws, c. 256, §§  3-5;  82 Del. Laws, c. 83, § 4;  83 Del. Laws, c. 263, § 3;  83 Del. Laws, c. 418, § 1;