Mandatory Expungement Eligibility Guide

If your record is eligible for mandatory expungement, that means that if you obtain a copy of your Certified Delaware Criminal History and submit the required application to Delaware State Police, your record will be cleared.

If you do not have pending charges, are not on probation or parole, and are not currently incarcerated, your record may be eligible for some form of expungement.

All records where the “case is terminated in favor of the accused” are eligible for mandatory expungement upon request with no waiting period. A case terminated in favor of the accused can be expunged even if a person has prior or subsequent convictions that are ineligible for expungement. Cases “terminated in favor of the accused” include:

• Acquittals of all charges;
• A nolle prosequi on all charges or a case where all charges were dropped;
• Dismissal after probation before judgment;
• Dismissal of all charges; and
• Arrests that are not charged within 1 year of the arrest.

Records of convictions for marijuana possession, underage possession of alcohol, and underage consumption of alcohol are also eligible for mandatory expungement with no waiting period.

Records of one or more criminal violations relating to the same case, even if the person has prior or subsequent convictions, are eligible for mandatory expungement after three years.

Certain types of cases containing one or more misdemeanor convictions, or a combination of misdemeanors and violations, are eligible for mandatory expungement after five years if the person has no prior or subsequent convictions.

A few felony convictions (including possession of burglar’s tools, unlawful use of a payment card, and certain drug-related and forgery convictions) are eligible for mandatory expungement after ten years if the person has no prior or subsequent convictions.

Domestic violence restrictions: Any record of conviction that involves domestic violence, a child victim, or a vulnerable adult victim is not eligible for mandatory expungement. Such records may be eligible for discretionary expungement after 7 years or a discretionary expungement after pardon. For more information about what constitutes a “crime of domestic violence,” see 11 Del. C. §4373(b)(1).

All convictions eligible for mandatory expungement

If your record is not eligible for mandatory expungement, you may still be able to find relief through discretionary expungement or a discretionary expungement following a pardon. The discretionary expungement process involves a petition to the Court. The Court will grant an expungement if it finds that the continuing existence and availability of the record “constitute[s] a manifest injustice.” 11 Del. C. § 4374(f).

Records eligible for discretionary expungement are:

• A single non-violent felony after a seven-year waiting period, with no prior or subsequent convictions. 
• “One or more” misdemeanors relating to the same case, with no prior or subsequent convictions.  Misdemeanors eligible for mandatory expungement are eligible for a discretionary expungement after a three-year waiting period (two years before they would be eligible for the mandatory expungement process).  Other eligible misdemeanors can petition for a discretionary expungement after a seven-year waiting period.

If you have more than one case containing a conviction on your record, or if your conviction is not one of the types listed as eligible for discretionary expungement, you must obtain a pardon in order to qualify for an expungement. The only convictions not eligible to apply for a discretionary expungement following a pardon are:

• Manslaughter;
• Murder in the first or second degree;
• Rape in the first or second degree;
• Sexual abuse of a child by a person in a position of trust, authority, or supervision in the first degree; and
• Any Title 21 Motor Vehicle Charge, other than those listed under 11 Del. C. §4374(i)(2):
  • Driving after judgment prohibited;
  • Reckless driving; and
  • Operation of a motor vehicle causing death.

For more information, see 11 Del. C. § 4375(b).

Learn more

The mandatory expungement process is managed by the State Bureau of Identification(SBI). Anyone seeking a mandatory expungement must first be fingerprinted and request their Certified Delaware Criminal History. The fee for fingerprinting is $52. If SBI determines an individual is eligible for mandatory expungement, the packet containing the Certified Delaware Criminal History mailed to the individual will include an application for mandatory expungement. The application, along with a $75 application fee, must be mailed to SBI within 30 days of the date listed on the Certified Delaware Criminal History.

We can help. Join us at one of our upcoming expungement workshops, in partnership with the Delaware Center for Justice, the Dover District Ministerium AMEC, and Everlasting Hope Ministries, to begin the process of eligibility verification for mandatory expungement.

Upcoming Expungement Workshops