Delaware expungement can clear a criminal record from public view through one of three paths: an automatic monthly review by the State Bureau of Identification, a mandatory clearing you request from SBI, or a discretionary petition filed in Superior Court. Which path applies depends on how your case ended, what you were convicted of, and how much time has passed.
Who Qualifies and Which Path Applies
Three questions decide your route. Did the case end without a conviction? Was the conviction minor enough to qualify as mandatory? Or do you need a judge to grant it as a discretionary matter?
A case counts as “terminated in favor of the accused” if you were acquitted, all charges were dismissed, a nolle prosequi was entered, you completed probation before judgment and were discharged, or you were arrested but no charges were filed within a year.1Justia. 11 Delaware Code 4372 – Applicability; Definitions; Effect of Expungement Cases older than seven years with no recorded disposition also qualify, provided there is no active warrant or recent case activity. These are entitled to mandatory expungement.
Certain conviction types also qualify as mandatory once the waiting period has passed:
- Violations: 3 years after conviction, even if you have other convictions that are themselves ineligible.
- A single misdemeanor case: 5 years after conviction, with no other convictions that would bar eligibility.
- General drug possession: 5 years after conviction.
- Marijuana possession and drug paraphernalia: eligible regardless of other convictions, with no additional waiting period.
- Underage alcohol possession or consumption: eligible regardless of other convictions.
Everything else that is eligible at all falls into the discretionary bucket, which means a court petition and a judge’s decision.
Automatic Clearing Under the Clean Slate Act
Starting August 1, 2024, SBI is required to review criminal records monthly, identify cases that meet mandatory expungement criteria, and clear them without any action from you.2Delaware Code Online. Delaware Code Title 11 Chapter 43 Subchapter VII – Expungement of Criminal Records The Delaware Criminal Justice Information System flags potentially eligible records, and SBI staff confirm each one before processing.
Two things to know. You cannot sue for damages if SBI misses your case — the statute bars that claim. And if the automatic system hasn’t caught your record, you can still file your own request directly with SBI. The monthly sweep is a safety net, not a replacement for the request route.
Mandatory Expungement on Request
If your case fits the mandatory criteria above but hasn’t been cleared automatically, SBI handles the request without any court involvement. You don’t need a judge and you don’t file in Superior Court. You contact SBI and have them process the clearing based on the statutory eligibility.2Delaware Code Online. Delaware Code Title 11 Chapter 43 Subchapter VII – Expungement of Criminal Records
Discretionary Expungement by Petition
If your conviction doesn’t fit the mandatory list, you may still qualify through a court petition, but the waiting periods are longer and the rules stricter:
- Misdemeanors not on the statutory exclusion list: at least 3 years since conviction or release from incarceration, whichever is later, and no other convictions.
- Excluded misdemeanors (those specifically listed as ineligible for mandatory expungement): at least 7 years since conviction or release, and no other convictions.
- Felonies: at least 7 years since conviction or release, and no other convictions.
- Multiple violations or non-excluded misdemeanors across separate cases: at least 5 years since the most recent conviction or release, and no other convictions that wouldn’t independently qualify for mandatory expungement.
The “no other convictions” condition catches most people. It means no prior and no subsequent convictions anywhere on your record, not just a clean stretch since the offense you want cleared.3Justia. 11 Delaware Code 4374 – Discretionary Expungement; Application to Court One additional conviction, even a minor one, can disqualify you.
Offenses That Can Never Be Cleared
Some convictions are permanently off the table regardless of time passed or rehabilitation. The categories include serious violent felonies listed in Delaware’s sentencing guidelines (such as murder and manslaughter), sex offenses (including rape, unlawful sexual contact in the third degree, and sexual abuse of a child by a person in a position of trust), felonies involving physical or sexual assault of children under the Beau Biden Child Protection Act, incest, and coercion.
A separate and lengthy list of misdemeanors is excluded from mandatory expungement, though some may still qualify for discretionary expungement under the 7-year rule above. That list covers domestic violence crimes, sex-related offenses like sexual harassment and indecent exposure, weapons charges such as carrying a concealed dangerous instrument, hate crimes, resisting arrest, official misconduct, and several fraud-related offenses.2Delaware Code Online. Delaware Code Title 11 Chapter 43 Subchapter VII – Expungement of Criminal Records Crimes against children and vulnerable adults are also excluded from mandatory expungement regardless of the specific charge.
The Pardon Route for Otherwise Ineligible Convictions
A pardon from the Governor can reopen a path that would otherwise be closed. After receiving an unconditional pardon, you can petition for discretionary expungement using the same court process that applies to standard petitions.2Delaware Code Online. Delaware Code Title 11 Chapter 43 Subchapter VII – Expungement of Criminal Records This can reach convictions that are otherwise permanently ineligible.
Six offenses remain completely barred even with a pardon: manslaughter, second-degree murder, first-degree murder, second-degree rape, first-degree rape, and first-degree sexual abuse of a child by a person in a position of trust.
Filing a Discretionary Petition
Start by getting your certified criminal history from SBI. The report costs $72 and requires an appointment.4Delaware State Police. Obtaining a Certified Delaware Criminal History SBI sends a letter within about two weeks telling you whether you qualify for mandatory expungement or need to file a discretionary petition.
Discretionary petitions all go to the Prothonotary Office in Superior Court, no matter where the original case was heard — Superior Court, the Court of Common Pleas, or Justice of the Peace Court.5Delaware Courts. Expungement/Pardon of Criminal Record The filing fee is $75,6Delaware Courts. Civil and Criminal Fees – Superior Court with fee waivers available for financial hardship. Forms are on the Delaware Courts website. You can attach supporting documents such as employer letters or evidence of community involvement.
Once filed, the clerk sends your petition to the Attorney General, who has 120 days to respond.7Delaware Courts. Delaware Superior Court – Expungement Instructions If the AG doesn’t object, a judge typically decides on the papers. If the AG objects, you have 30 days to file a written response, and the judge may schedule a hearing or decide on the paperwork alone. At a hearing, the judge weighs rehabilitation, time since the offense, and the impact of the record on your employment and housing. Documentation of steady work, completed treatment, community ties, or education helps.
Juvenile Records
Juvenile records are governed by a separate statute under Title 10, and the Family Court handles the petitions. The rules are more generous. Expungement must be granted if the case ended in the juvenile’s favor (the court can order it during the proceeding itself, subject to a 30-day AG objection window), if the adjudication was only for underage alcohol possession, marijuana possession, or drug paraphernalia, or if the juvenile has no more than one adjudication of delinquency, at least 3 years have passed, and the offense was not a violent felony or sex offense.
As with adult records, juvenile charges older than seven years with no recorded disposition are treated as dismissed and don’t count against eligibility.8Justia. 10 Delaware Code 1017 – Mandatory Expungement
What Expungement Actually Does
Once your record is expunged, Delaware law treats the offense as if it never happened. You are not required to disclose the arrest, charge, or conviction, and no one should ask about it.1Justia. 11 Delaware Code 4372 – Applicability; Definitions; Effect of Expungement On a job or housing application, you can truthfully answer “no” to criminal history questions.
A few narrow exceptions remain. Law enforcement agencies can access expunged records for hiring and investigations. Agencies involved in concealed carry licensing can check them. Diversion and probation-before-judgment programs can see whether you’ve previously participated. And if you’re convicted of a new offense later, the court, the AG, and the Governor’s pardon board can access the cleared records for sentencing and pardon decisions.
Cleaning Up Private Background Checks
State agencies update their records after an expungement order, but private background check companies pull data from various sources and often lag. An expunged charge can linger in a commercial database for months.
Federal law gives you a remedy. The Consumer Financial Protection Bureau has stated that background screening reports must be free of information that has been expunged, sealed, or otherwise restricted from public access.9Consumer Financial Protection Bureau. CFPB Addresses Inaccurate Background Check Reports and Sloppy Credit File Sharing Practices Under the Fair Credit Reporting Act, you can request your file from any background check company, dispute inaccurate information, and require them to investigate and correct it.10Federal Trade Commission. What Tenant Background Screening Companies Need to Know About the Fair Credit Reporting Act If an expunged record shows up on a report used for a job or housing decision, send a written dispute with a copy of your expungement order. Companies that don’t remove expunged records after a dispute face liability under federal law.
What a Delaware Order Does Not Reach
Delaware expungement only reaches cases brought in Delaware courts.1Justia. 11 Delaware Code 4372 – Applicability; Definitions; Effect of Expungement A Delaware order has no effect on federal convictions, convictions from other states, or records held in federal databases like the FBI’s National Crime Information Center. Federal convictions require federal relief, and out-of-state convictions have to be addressed under that state’s own expungement rules.