Bill Text: DE HB410 | 2015-2016 | 148th General Assembly | Draft
Bill Title: An Act To Amend Titles 4, 10, And 11 Of The Delaware Code Relating To Expungement.
Spectrum: Moderate Partisan Bill (Democrat 11-2)
Status: (Introduced - Dead) 2016-06-09 - Introduced and Assigned to Judiciary Committee in House [HB410 Detail]
Download: Delaware-2015-HB410-Draft.html
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SPONSOR: |
Rep. Longhurst & Sen. Peterson & Sen. Townsend & Sen. Bonini |
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Reps. Heffernan, J. Johnson, Kowalko, Osienski; Sen. Henry |
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HOUSE OF REPRESENTATIVES 148th GENERAL ASSEMBLY |
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HOUSE BILL NO. 410 |
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AN ACT TO AMEND TITLES 4, 10, AND 11 OF THE DELAWARE CODE RELATING TO EXPUNGEMENT. |
Section 1.Amend §4371, Title 11 of the Delaware Code by making insertions as shown by underline and deletions as shown by strike through as follows:
§ 4371. Statement of policy.
The
General Assembly finds that arrest records can be a hindrance to an innocent
citizen's ability to obtain employment, obtain an education or to obtain credit.
obtaining employment, education, or credit among citizens who are innocent,
or who have led responsible and law-abiding lives for a substantial period of
time since being convicted of a crime. This subchapter is intended to
protect innocent such persons from unwarranted damage which may
occur as the result of arrest and other criminal proceedings which are
unfounded or unproven the existence of a criminal record.
Section 2.Amend §4372, Title 11 of the Delaware Code by making insertions as shown by underline and deletions as shown by strike through as follows:
§ 4372. Termination of criminal action in favor of accused.
(a) If a person is charged with the commission of a crime or crimes and the case is terminated in favor of the accused, the person may request the expungement of the police records and the court records relating to the charge pursuant to the provisions of this subchapter.
(b) For the purposes of this subchapter, a case or charge shall be deemed to be "terminated in favor of the accused" only if:
(1) The accused is acquitted of all charges related to the case; or
(2) A nolle prosequi is entered on all charges related
to the case; or all charges related to the case are otherwise
dismissed; or
(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; or
(4) All charges related to the case are otherwise
dismissed.
(4) The accused is acquitted of one or more charges related to the case, and the other charges are dismissed pursuant to an entry of nolle prosequi or otherwise; or
(5) A person is arrested for the commission of a crime or crimes and no charges related to the matter for which the person was arrested are filed in any court.
(c) For the purposes of this subchapter, "case" means a charge or set of charges related to a complaint or incident that are or could be properly joined for prosecution.
Section 3. Amend §4373, Title 11 of the Delaware Code by making insertions as shown by underline and deletions as shown by strike through as follows:
§ 4373. Mandatory expungement.
(a)
If a person is arrested for the commission of a crime, or charged with
the commission of a crime which is designated as a misdemeanor or violation
in Title 4, 7, 11, 16 or 23, or a county or municipal code, ordinance, or
regulation which is the same as, or equivalent to, any Title 4, 7, 11, 16 or 23
offense, excepting those crimes specifically exempted in subsection (c) of this
section, and the case or charge is terminated in favor of the
accused, and the person has not previously been convicted of another criminal
offense, upon an appropriate request to the State Bureau of Identification by
such person the police records and court records, including any electronic
records, relating to the charge or charges shall be expunged. if the
person has not been convicted of any crime since the date upon which the case
was terminated in favor of the accused.
(b) Notwithstanding any provision of this subchapter or any other law to the contrary, a person who was convicted of a violation, upon appropriate request to the State Bureau of Identification by such person, shall have the police records and court records, including any electronic records, expunged if:
(1) Three years have passed since the date of the conviction, or the person presents a written waiver of this requirement from the Attorney General; and
(2) The petitioner has no prior or subsequent convictions, excepting:
a. Convictions of violations that were disposed of within the same case as the conviction that the person is seeking to expunge; and
b. Convictions of violations of section 904(e) or 904(f) of Title 4;
(c) Notwithstanding any provision of this subchapter or any other law to the contrary, a person who was convicted of a misdemeanor, upon appropriate request to the State Bureau of Identification by such person, shall have the police records and court records, including any electronic records, expunged if:
(1) Six years have passed since the date of the conviction, or the person presents a written waiver of this requirement from the Attorney General; and
(2) The petitioner has no prior or subsequent convictions, excepting:
a. Convictions of violations or misdemeanors that were disposed of within the same case as the conviction that the person is seeking to expunge; and
b. Convictions of violations of section 904(e) or 904(f) of Title 4;
(b)
(d) If the State Bureau of Identification determines that expungement is
mandated pursuant to the terms of this section it shall promptly so notify the
courts and police agencies where records pertaining to the case are located or
maintained, and any court where the case was terminated, disposed of or
concluded. All records appropriately specified in the expungement request
shall, within 60 days of the determination that such request is mandated
pursuant to the terms of this section, be removed from the files, and placed in
the control of the Supervisor of the State Bureau of Identification who shall
be designated to retain control over all expunged records, and who shall insure
that the records or the information contained therein is not released for any
reason except as specified in this subchapter. A court and/or police agency
which receives a notice of expungement from the State Bureau of Identification
shall provide the Bureau with written confirmation of the completion of the expungement.
In response to requests from nonlaw-enforcement officers for information or
records on the person who was arrested, the law-enforcement officers and
departments shall reply, with respect to the arrest and proceedings which are
the subject of the order, that there is no record.
(c)
Mandatory expungement pursuant to this section shall not be applicable to the
records of any case in which the defendant was charged with 1 or more of the
following crimes, or any county or municipal code, ordinance, or regulation
which is the same as, or equivalent to, any crime specified herein:
(1) Any misdemeanor designated as a sex offense
pursuant to §761 of this title;
(2) Any misdemeanor set forth in subpart A of
subchapter II of Chapter 5 of this title;
(3) Unlawful imprisonment pursuant to §781 of this
title;
(4) Interference with custody pursuant to §785 of
this title;
(5) Coercion pursuant to §791 of this title;
(6) Trespassing with intent to peer or peep, pursuant
to §820 of this title;
(7) Endangering the welfare of a child, pursuant to §
1102 of this title;
(8) Crime against a vulnerable adult, pursuant to §
1105 of this title;
(9) Any misdemeanor set forth in subparts A, B, C or
F of subchapter VI of Chapter 5 of this title;
(10) Any misdemeanor or violation set forth in
Chapter 85 of this title;
(11) Patient abuse, pursuant to §1136 of Title 16;
(12) Operation of a vessel or boat while under the
influence, pursuant to §2302 of Title 23.
(d)
At the time the application requesting expungement is filed with the State
Bureau of Identification the applicant shall pay a reasonable fee to the State
Bureau of Identification. The applicant shall attach a copy of that applicant's
criminal history as maintained by the State Bureau of Identification to any
application requesting expungement filed pursuant to this section. The State
Bureau of Identification shall summarily reject any application for expungement
that does not include the applicant's criminal history without further notice
to the applicant.
(e)
The State Bureau of Identification shall be authorized to promulgate reasonable
regulations to accomplish the purposes of this section., but it shall
neither charge a fee to the applicant nor require the applicant to purchase a
copy of the applicant's criminal history.
(f)
An offense for which records have been expunged pursuant to this section shall
not have to be disclosed by the person as an arrest for any reason,
except for disclosure to criminal justice agencies, as defined in §8502(5) of
this title, for the purposes provided in §4376(a) of this title.
Section 4.Amend §4374, Title 11 of the Delaware Code by making insertions as shown by underline and deletions as shown by strike through as follows:
§ 4374. Discretionary expungement
(a) Notwithstanding any provision of this subchapter or any other law to the contrary, a person who was convicted of a violation may file a petition in the Superior Court in the county where his or her most recent criminal charges were terminated, disposed of, or concluded, or in the Family Court in the county where his or her most recent criminal charges were terminated, disposed of, or concluded, setting forth the relevant facts and requesting expungement of the police records and the court records, including any electronic records, relating to the charge or charges if:
(1) On the date of the request, the petitioner has not been arrested or convicted of any offense within the past 1 year; and
(2) On the date of the request, the petitioner has not been discharged from a term of incarceration within the past 1 year; and
(3) The petitioner is not currently serving a term or incarceration, parole, or probation; and
(4) The petitioner has no prior or subsequent criminal convictions, excepting those convictions that are eligible for expungement pursuant to this subchapter, Subchapter III of Chapter 9 of Title 10, Chapter 9 of Title 4, §787(j) of Title 11, or §4764 of Title 16.
(b) Notwithstanding any provision of this subchapter or any other law to the contrary, a person who was convicted of a misdemeanormay file a petition in the Superior Court in the county where his or her most recent criminal charges were terminated, disposed of, or concluded, or in the Family Court in the county where his or her most recent criminal charges were terminated, disposed of or concluded,setting forth the relevant facts and requesting expungement of the police records and the court records, including any electronic records, relating to the charge or charges if:
(1) On the date of the request, the petitioner has no criminal conviction within the past 5 years, excepting any convictions of violations; and
(2) On the date of the request, the petitioner has not been discharged from a term of incarceration within the past 5 years; and
(3) The petitioner is not currently serving a term or incarceration, parole, or probation; and
(4) The petitioner has no prior or subsequent criminal convictions, excepting those convictions that are eligible for expungement pursuant to this subchapter, Subchapter III of Chapter 9 of Title 10, Chapter 9 of Title 4, §787(j) of Title 11, or §4764 of Title 16.
(c) Notwithstanding any provision of this subchapter or any other law to the contrary, a person who was convicted of a crime that is not designated as a violent felony listed in § 4201(c) of Title 11, may file a petition in the Superior Court in the county where his or her most recent criminal charges were terminated, disposed of, or concluded, setting forth the relevant facts and requesting expungement of the police records and the court records, including any electronic records, relating to the charge or charges if:
(1) The petitioner has no prior or subsequent felony convictions, excepting felony convictions which were disposed of within the same case as the conviction that the person is seeking to expunge; and
(2) On the date of the request, the petitioner has no criminal conviction within the past 7 years, excepting:
a. Convictions of violations or unclassified misdemeanors, other than misdemeanor crimes of domestic violence as defined in §1448(a)(7) of Title 11; and
b. Convictions, excepting those criminal convictions that are eligible for expungement pursuant to this subchapter, Subchapter III of Chapter 9 of Title 10, Chapter 9 of Title 4, §787(j) of Title 11, or §4764 of Title 16;
(3) On the date of the request, the petitioner has not been discharged from a term of incarceration within the past 7 years; and
(4) The petitioner is not currently serving a term or incarceration, parole, or probation.
(d) A person may in one petition seek expungement under subsection (a),(b) or (c) of this section or any combination thereof.
(a) (e) Notwithstanding any
provision of §4373 of this title to the contrary, if a person is charged with
the commission of a crime, or a violation of any county or municipal code,
ordinance, or regulation, and the case is terminated in favor of the accused,
the person may file a petition in the Superior Court in the county where the
case was terminated, disposed of or concluded setting forth the relevant facts
and requesting expungement of the police records and the court records, or
includes any electronic records, relating to the charge or charges.Discretionary expungement pursuant to this
section shall not be applicable to the records of any case that may be expunged
pursuant to the provisions of §4373 of this title.; provided,
however, where a person was charged with a criminal offense where discretionary
expungement pursuant to this section applies, but also was charged, within the
same case, with a criminal offense where mandatory expungement pursuant to §
4373 of this title applies, such person must file a petition in Superior Court
pursuit to this section.
(b)
(f) After the petition requesting expungement is filed with the Superior
Court 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 30 days after it is served on the Attorney General.Provided, however, that if a person
convicted of a felony or class A misdemeanor petitions for a discretionary
expungement pursuant to subsection (b) through (d) of this section, the
Attorney General in cooperation with the Superior Court or Family Court shall
send notice of such petition to each person who was a victim of the offense for
which the petitioner was convicted.Where a victim is known to be deceased, a good faith effort shall be
made to send notice to a member of the immediate family of such person.Where the victim or witness is known to be
under 18 years of age or is incompetent, a good faith effort shall be made to
send the notice to the parent, guardian or custodian of such person.Notification for the purpose of this section shall
be by certified mail (return receipt requested) to the last known address of
such victim.Each victim, or victim's
representative, shall be permitted to submit a written statement to the
Attorney General. For an expungement
petition which requires victim notification pursuant to this subsection, the
Attorney General may file an objection or answer the petition within 75 days
after such petition is served on the Attorney General.If the Court decides to hold a hearing in
regard to the expungement petition, the Attorney General in cooperation with
the Superior Court or Family Court shall notify the victim of the time, date,
and place where the matter shall be heard by the Court.The victim shall be permitted to testify at
such a hearing.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
pursuant to this section. The Court shall summarily reject any petition for
expungement that does not include the petitioner's criminal history.
(c)
(g) Unless the Court believes a hearing is necessary, petitions shall be
disposed of without a hearing. If the Court finds that the continued existence
and possible dissemination of information relating to the arrest, charge, 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 police and court records relating to the
charge or case.Otherwise, it shall deny
the petition. The burden shall be on the petitioner to allege specific facts in
support of that petitioner's allegation of manifest injustice, and the burden
shall be on the petitioner to prove such manifest injustice by a preponderance
of the evidence.The fact that the
petitioner has previously been convicted of a criminal offense, other than that
referred to in the petition, shall be considered by the Court as prima facie
evidence that the continued existence and possible dissemination of information
relating to the arrest in question does not constitute a manifest injustice to
the petitioner.The Court may
order expungement of charges originating in a different county.A petition filed by the Attorney General or
the Attorney General's designee pursuant to subsection (e) (i) of
this section shall be granted by the Court.
(d)
(h) The State shall be made party defendant to the proceeding. Any party
aggrieved by the decision of the Court may appeal, as provided by law in civil
cases.
(e)
(i) 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.
(j) The Court may grant a petition for expungement pursuant to this section at a date earlier than permissible under subsections (a) through (d) of this section, if the petitioner presents a written waiver from the Attorney General, and the Court is otherwise authorized to grant the petition for expungement pursuant to this section.
(f)
(k) If an order expunging the records is granted by the Court, all the
criminal records specified in the order shall, within 60 days of the order, be
removed from the files, and placed in the control of the Supervisor of the
State Bureau of Identification who shall be designated to retain control over
all expunged records, and who shall insure that the records or the information
contained therein is not released for any reason except as specified in this
subchapter. A court and/or police agency which receives a notice of expungement
from the State Bureau Identification shall provide the Bureau with written
confirmation of the completion of the expungement. The State Bureau of
Identification shall provide the Court which entered the order with written
confirmation of the execution of the order. In response to requests from
nonlaw-enforcement officers for information or records on the person who was
arrested, the law-enforcement officers and departments shall reply, with
respect to the arrest and proceedings which are the subject of the order, that
there is no record. No order requiring an expungement of any record shall be
entered or enforced if such order is contrary to the provisions of this
subchapter. The State Bureau of Identification shall promptly notify the Court
if it is unable to comply with any order issued pursuant to this subchapter.
(g)(l)(1) Notwithstanding any provision of
this subchapter or any other statute or rule to the contrary, the police
records and the court records relating to any charge set forth in Title 21, or
in any county or municipal code, ordinance, or regulation which is the same as,
or equivalent to, any Title 21 offense, shall not be expunged pursuant to this
subchapter unless the charge or charges is one of those specifically enumerated
in paragraph (g)(2)(l)(2)of this section.
(2) Discretionary Mandatory expungement
pursuant to this section shall be 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 Title 21 offense
specified herein:
a. Driving after judgment prohibited, pursuant to §2810 of Title 21;
b. Reckless driving, pursuant to §4175 of Title 21;
c. Operation of a motor vehicle causing death, pursuant to § 4176A of Title 21;
d. Driving under the influence, pursuant to §4177 of Title 21; or
e. Operating a commercial vehicle with a prohibited blood alcohol concentration or while impaired by drugs, pursuant to §4177M of Title 21.
(h)(m)
The Superior Court shall establish a reasonable fee schedule for the filing of
a petition of expungement pursuant to this section.
(i)
(n) An offense for which records have been expunged pursuant to this
section shall not have to be disclosed by the person as an arrest for any
reason, except for disclosure to criminal justice agencies, as defined in §
8502(5) of this title, for the purposes provided in §4376(a) of this title.
Section 5. Amend §4375 of Title 11 of the Delaware Code by making insertions as shown by underline and deletions as shown by strike through as follows:
§
4375. Discretionary expungementExpungement following a pardon.
(a)
Notwithstanding any provision of this subchapter or any other law to the
contrary, a person who was convicted of a felony, other than a violent
felony in §4201(c) of this title, excluding Title 16 offenses, misdemeanor,
or violation, excepting those crimes specifically exempted in
subsection (b) of this section and who is thereafter unconditionally
pardoned by the Governor may request a discretionary expungement pursuant to
the procedures set forth in §4374 of this title. shall, as an effect of
said pardon, automatically have that individual's record expunged. The
burden shall be on the petitioner to allege specific facts in support of that
petitioner's allegation of manifest injustice, and the burden shall be on the
petitioner to prove such manifest injustice by a preponderance of the evidence.
The fact that the petitioner was convicted of the criminal offense that is the
subject of that petitioner's expungement application shall be considered by the
Court as prima facie evidence that the continued existence and possible
dissemination of information relating to the arrest in question does not
constitute a manifest injustice to the petitioner.
(b)
Discretionary expungement following a pardon pursuant to this section shall not
be applicable to the records of any case in which the defendant was charged
with 1 or more of the following crimes, or any county or municipal code,
ordinance, or regulation which is the same as, or equivalent to, any crime
specified herein:
(1) Any misdemeanor or violation involving
embezzlement of public money, bribery or perjury;
(2) Any misdemeanor designated as a sex offense
pursuant to §761 of this title;
(3) Any misdemeanor set forth in subparts A, B, C or
F of subchapter VI of Chapter 5 of this title;
(4) Unlawful imprisonment pursuant to §781 of this
title;
(5) Interference with custody pursuant to §785 of
this title; or
(6) Coercion pursuant to §791 of this title.
(b) This section shall not limit the authority of the Governor to issue a conditional pardon that prohibits expungement of the offense for which the pardon is granted.
Section 6. Amend §1025, Title 10 of the Delaware Code by making insertions as shown by underline and deletions as shown by strike through as follows:
§1025 Expungement of adult police and court records. [Repealed]
(a) If an adult person is charged with
the commission of a crime or crimes and the case is terminated in favor of the
accused, the person may request the expungement of the police records and the
court records relating to the case pursuant to the provisions of this
subchapter.
(b) For
the purposes of this section, a case shall be deemed to be "terminated in
favor of the accused" only if:
(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; or
(4) All charges related to the
case are otherwise dismissed.
(c) For
the purposes of this section "case" means a charge or set of charges
related to a complaint or incident that are or could be properly joined for
prosecution.
(d) If an
adult is charged with the commission of a crime which is designated as a
misdemeanor or violation in Title 4, 7, 11, 16, or 23, excepting those crimes
specifically exempted in paragraph (d)(2) of this section, and the case is
terminated in favor of the accused, and the person has not previously been
convicted of another criminal offense, upon an appropriate request to the State
Bureau of Identification by such person the police records and court records,
including any electronic records, relating to the charge or charges shall be
expunged if the person has not been convicted of any crime since the date upon
which the case was terminated in favor of the accused.
(1) If the State Bureau of
Identification determines that expungement is mandated pursuant to the terms of
this paragraph, it shall promptly so notify the courts and police agencies
where records pertaining to the case are located or maintained, and any court
where the case was terminated, disposed of or concluded. All records
appropriately specified in the expungement request shall, within 60 days of the
determination that such request is mandated pursuant to the terms of this
section, be removed from the files, and placed in the control of the Supervisor
of the State Bureau of Identification who shall be designated to retain control
over all expunged records, and who shall ensure that the records or the
information contained therein is not released for any reason except as
specified in this subchapter. Criminal justice agencies as defined in §8502(5)
of Title 11 shall, however, have access to records of expunged probations
before judgment for the specific purpose of determining whether a person is
eligible for a probation before judgment, as set forth in §4218 of Title 11. A
court or a police agency which receives a notice of expungement from the State
Bureau of Identification shall provide the Bureau with written confirmation of
the completion of the expungement. In response to requests from
nonlaw-enforcement officers for information or records on the person who was
arrested, the law-enforcement officers and departments shall reply, with
respect to the arrest and proceedings which are the subject of the order, that
there is no record.
(2) Mandatory expungement pursuant
to this subsection shall not be applicable to the records of any case in which
the defendant was charged with one or more of the following crimes:
a. Any misdemeanor designated as a
sex offense pursuant to §761 of Title 11;
b. Any misdemeanor set forth in
subpart A of subchapter II of Chapter 5 of Title 11;
c. Unlawful imprisonment pursuant
to §781 of Title 11;
d. Interference with custody
pursuant to §785 of Title 11;
e. Coercion pursuant to §791 of
Title 11;
f. Trespassing with intent to peer
or peep, pursuant to §820 of Title 11;
g. Endangering the welfare of a
child, pursuant to §1102 of Title 11;
h. Crime against a vulnerable
adult, pursuant to §1105 of Title 11;
i. Any misdemeanor set forth in
subparts A, B, C or F of subchapter VI of Chapter 5 of Title 11;
j. Any misdemeanor or violation
set forth in Chapter 85 of Title 11;
k. Patient abuse, pursuant to §
1136 of Title 16;
l. Operation of a vessel or boat
while under the influence, pursuant to §2302 of Title 23.
(3) At the time the application
requesting expungement is filed with the State Bureau of Identification, the
applicant shall pay a reasonable fee to the State Bureau of Identification. The
applicant shall attach a copy of that applicant's criminal history as
maintained by the State Bureau of Identification to any application requesting
expungement filed pursuant to this section. The State Bureau of Identification
shall summarily reject any application for expungement that does not include
the applicant's criminal history without further notice to the applicant.
(4) The State Bureau of
Identification shall be authorized to promulgate reasonable regulations and a
reasonable fee schedule to accomplish the purposes of this subsection.
(e) Notwithstanding
any provision of subsection (d) of this section to the contrary, if a person is
charged with the commission of a crime and the case is terminated in favor of
the accused, the person may file a petition in the Family Court in the county
where the case was terminated, disposed of or concluded setting forth the
relevant facts and requesting expungement of the police records and the court
records relating to the charge or charges. Discretionary expungement pursuant
to this section shall not be applicable to the records of any case that may be
expunged pursuant to the provisions of subsection (d) of this section,
provided, however, that where a person was charged with a criminal offense
where discretionary expungement pursuant to this subsection applies, but also
was charged, within the same case, with a criminal offense where mandatory
expungement pursuant to this section applies, such person must file a petition
in the Family Court pursuant to this section.
(1) After the petition requesting
expungement is filed with the 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 30 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 pursuant to this section. The Court shall
summarily reject any petition for expungement that does not include the
petitioner's criminal history.
(2) Unless the Court believes a
hearing is necessary, petitions shall be disposed of without a hearing. If the
Court finds that the continued existence and possible dissemination of
information relating the arrest 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 police and court records relating to the
charge or case. Otherwise, it shall deny the petition. The burden shall be on
the petitioner to allege specific facts in support of that petitioner's
allegation of manifest injustice, and the burden shall be on the petitioner to
prove such manifest injustice by a preponderance of the evidence. The fact that
the petitioner has previously been convicted of a criminal offense, other than
that referred to in the petition, shall be considered by the Court as prima
facie evidence that the continued existence and possible dissemination of
information relating to the arrest in question does not constitute a manifest
injustice to the petitioner. A petition filed by the Attorney General or the
Attorney General's designee pursuant to paragraph (e)(4) of this section shall
be granted by the Court.
(3) The State shall be made party
defendant to the proceeding. Any party aggrieved by the decision of the Court
may appeal, as provided by law in civil cases.
(4) Notwithstanding any provision
of this section or any other statute or rule to the contrary, the Attorney
General or 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 of 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.
(5) If an order expunging the
records is granted by the Court, all the records specified in the order shall,
within 60 days of the order, be removed from the files, and placed in the
control of the Supervisor of the State Bureau of Identification who shall be
designated to retain control over all expunged records, and who shall ensure
that the records or the information contained therein is not released for any
reason except as specified in this subchapter. A police agency which receives a
notice of expungement from the State Bureau of Identification shall provide the
Bureau with written confirmation of the completion of the expungement. The
State Bureau of Identification shall provide the Court which entered the order
with written confirmation of the execution of the order. In response to
requests from nonlaw-enforcement officers for information or records on the
person who was arrested, the law-enforcement officers and departments shall
reply, with respect to the arrest and proceedings which are the subject of the
order, that there is no record. No order requiring an expungement of any record
shall be entered or enforced if such order is contrary to the provisions of
this subchapter. The State Bureau of Identification shall promptly notify the
Court if it is unable to comply with any order issued pursuant to this
subchapter.
(6) Notwithstanding any provision
of this section or any other statute or rule to the contrary, the police
records and the court records relating to any charge set forth in Title 21 of
shall not be expunged pursuant to this section unless the charge or charges is
1 of these specifically enumerated offenses:
a. Driving after judgment
prohibited, pursuant to §2810 of Title 21;
b. Reckless driving, pursuant to §
4175 of Title 21;
c. Operation of a motor vehicle
causing death, pursuant to §4176A of Title 21;
d. Driving under the influence,
pursuant to §4177 of Title 21;
e. Operating a commercial vehicle
with a prohibited blood alcohol concentration or while impaired by drugs,
pursuant to §4177M of Title 21.
(7) The Family Court shall establish
a reasonable fee schedule for the filing of a petition of expungement pursuant
to this section.
(f) Notwithstanding
any provision of this subchapter or any other law to the contrary, a person who
was convicted of a misdemeanor or violation excepting those crimes specifically
exempted in subsection (g) of this section who is thereafter unconditionally
pardoned by the Governor may request a discretionary expungement pursuant to
the procedures set forth in subsection (e) of this section. The burden shall be
on the petitioner to allege specific facts in support of the petitioner's
allegation of manifest injustice, and the burden shall be on the petitioner to
prove such manifest injustice by a preponderance of the evidence. The fact that
the petitioner was convicted of the criminal offense that is the subject of the
petitioner's expungement application shall be considered by the Court as prima
facie evidence that the continued existence and possible dissemination of
information relating to the arrest in question does not constitute a manifest
injustice to the petitioner.
(g) Discretionary
expungement following a pardon pursuant to this section shall not be applicable
to the records of any case in which the defendant was charged with 1 or more of
the following crimes:
(1) Any misdemeanor designated as
a sex offense pursuant to §761 of Title 11;
(2) Unlawful imprisonment pursuant
to §781 of Title 11;
(3) Interference with custody
pursuant to §785 of Title 11; or
(4) Coercion pursuant to §791 of Title
11.
Section 7. Amend §904(o), Title 4 of the Delaware Code by making insertions as shown by underline and deletions as shown by strike through as follows:
(o)
Any person who was convicted of a first an offense under
subsections (e) and (f) of this section or the same offense under any county or
municipal code, ordinance, or regulation and who was under the age of 21 at the
time of the offense may, upon reaching the age of 21, apply for an expungement
of the record of the conviction and any indicia of arrest to the court in which
the person was convicted. For violations of subsection (e) or (f) of this
section, an order granting such expungement shall issue upon proof that the
person has reached the age of 21, unless the person has failed to comply with
the sentencing order or the person has another charge under this section, or
under the same offense under any county or municipal code, ordinance, or
regulation, which remains outstanding. Upon issuance of the order of
expungement, the records of the conviction and any indicia of arrest shall be
dealt with in accordance with the procedures specified in §§4373(c), 4374
and 4375 §§4374(j), 4374(k), and 4376 of Title 11. Nothing in this
section shall prohibit the Family Court from expunging a record of conviction
as otherwise provided by law. The application for or granting of a pardon
pursuant to §§4361 through 4363 4364 of Title 11 shall not
prohibit an expungement under this section. All sentencing orders for
violations of this section by persons under the age of 21 at the time of the
offense shall state that the record of the conviction may be expunged upon
reaching the age of 21 and thereafter. The civil filing fee shall apply to
applications for expungement plus a $100 fee payable to the State Bureau of
Investigation for administrative costs.
Section 8. Amend §4364, Title 11 of the Delaware Code by making insertions as shown by underline as follows:
§ 4364. Effect of pardon; restoration of civil rights.
(a) Except as otherwise provided by the Delaware Constitution, or expressly by any provision of the Delaware Code or any court rule, the granting of an unconditional pardon by the Governor shall have the effect of fully restoring all civil rights to the person pardoned. Such civil rights include, but are not limited to, the right to vote, the right to serve on a jury if selected, the right to purchase or possess deadly weapons and the right to seek and hold public office provided however, that this section shall not limit or affect the Governor's authority to place lawful conditions upon the granting of a pardon. Notwithstanding the granting of a pardon or any provision of this section, no person who shall be convicted of embezzlement of the public money, bribery, perjury or other infamous crime, shall be eligible to a seat in either House of the General Assembly, or capable of holding any office of trust, honor or profit under this State.
(b) Upon the granting of a pardon, the Governor shall provide notification of such pardon to all courts in which the person pardoned was convicted of a criminal offense.Upon receipt of the notification, the courts shall modify all court records- including paper, electronic, and all other types of records- which specify the final disposition of the criminal conviction, so that the final disposition shall be thereafter be recorded as "pardoned."
(c) Upon the granting of a pardon, the Governor shall provide notification of such pardon to the State Bureau of Identification.
(1) Upon receipt of the notification, the State Bureau of Identification shall modify the final disposition of all criminal convictions of the pardoned person, as recorded in the Criminal Justice Information System (CJIS), so that the final disposition shall be thereafter be recorded as "pardoned."
(2) Thereafter, in furnishing information pertaining to the criminal history of the pardoned person for any purpose pursuant to Chapter 85 of Title 11, the State Bureau of Identification shall print a heading on the first page of the document in boldface type of 12 point font or larger that states that the pardoned person "has been granted a pardon from the Governor of the State of Delaware."
Section 9. Amend §8513(a), Title 11 of the Delaware Code by making insertions as shown by underline and deletions as shown by strike through as follows:
(a) Upon application, the Bureau shall furnish a copy of all information available pertaining to the identification and criminal history of any person or persons of whom the Bureau has a record to:
(1) Criminal justice agencies and/or courts of the State or of any political subdivision thereof or to any similar agency and/or court in any State or of the United States or of any foreign country for purposes of the administration of criminal justice and/or criminal justice employment;
(2) Any person or the person's attorney of record who requests a copy of the person's own Delaware criminal history record, provided that such person:
a. Submits to a reasonable procedure established by standards set forth by the Superintendent of the State Police to identify one's self as the person whose record this individual seeks; and
b. (1) Pays a reasonable fee as set by the Superintendent, payable to the Delaware State Police; or
(2) Affirms that he or she will not furnish the criminal history record to another party, and that the purpose of the request is to allow the person to learn the contents of his or her record, to verify the accuracy of the record, or both, provided that that the person or person's attorney of record has not obtained the person's own criminal history record in this manner within the past 2 years.
(3) The Office of Defense Services when requesting information about an individual for whom the Office of Defense Services is attorney of record.
Section 10. If any provision of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or application of the Act which can be given effect without the invalid provision or application, and to that end the provisions of this Act are declared to be severable.
SYNOPSIS
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In recognition of the fact that criminal records can be a hindrance to obtaining employment, education, or credit among citizens who are innocent or who have led responsible and law-abiding lives for a substantial period of time since being convicted of a crime, this bill would expand Delaware's expungement law to provide for the mandatory expungement of some low-level convictions after a set period without any further convictions (3 years for a violation and 6 years for a misdemeanor), and to provide for the discretionary expungement for convictions if 5 years for misdemeanors and 7 years for nonviolent felonies has passed without any further convictions, but only if the petitioner proves that the expungement is in the interest of justice. The bill also provides for mandatory expungement of all arrests and charges that did not lead to criminal convictions and eliminates the fee charged to people seeking expungement for such arrests and charges. Finally, under current law, matters adjudicated in Family Court are subject to a separate but substantively identical expungement statute. This bill would put the Family Court adult expungements into the same section as Superior Court expungements to reduce the redundancy and promote uniformity. |
