SB38 – Fine Tuning the Adult Criminal Record Expungement Process

In 2019, the General Assembly passed Senate Bill 37 by votes of 35-5-1 in the House and 21-0 in the Senate. The bill would allow a person to petition for criminal record expungement for adult criminal and arrest records so long as those arrests or convictions concern low-level criminal charges. It would not apply to serious felonies like murder or rape. Previously, Delaware law did not allow criminal record expungement for adults. Indeed, the only way an adult could get an arrest record expunged is if the arrest never led to a conviction. And the only way a conviction record can be expunged is if the Governor had pardoned the person.

Senate Bill 38 makes some corrections, revisions and clarifications to the adult criminal record expungement process, as often happens after a new bill is passed and problems are encountered in the implementation of the bill.

First, Senate Bill 38 clarifies that the adult expungement law does not apply to a juvenile adjudication of delinquency. Second, the bill clarifies that “pending criminal charges” does not include an alleged violation of certain underage drinking crimes, possession of controlled substance crimes, and any motor vehicle offense.

Third, that certain crimes that are not eligible for a mandatory or discretionary expungement are eligible for a discretionary expungement after an unconditional pardon is granted by the Governor. Fourth, the bill clarifies that the requirement that a person may not receive an expungement for 10 years after a prior expungement is to be applied prospectively to expungements granted after December 27, 2019. Fifth, to clarify that the requirement that all fines, fees, and restitution be paid before an expungement is granted applies to the conviction for which the person is seeking the expungement, not all fines, fees, or restitution the person might owe.

Sixth, to apply expungement of certain cases without a disposition. Seventh, to clarify that a case terminated in favor of an accused is to be expunged even if a person has other prior or subsequent convictions that are not eligible for expungement. Eighth, that expungement to applies to certain criminal contempt of court orders, criminal contempt of a protection from abuse order, and breach of release as misdemeanor crimes of domestic violence that are not subject to mandatory expungement. Ninth, to permit a person to include in a petition for discretionary expungement a crime that is eligible for mandatory expungement and to authorize Family Court and Superior Court to grant a mandatory expungement.