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Expungement
Expungement is the sealing of a person's criminal record. The expungement process does not erase the criminal record, but simply seals the record from public view. All copies of the record are supposed to be destroyed and erased from databases except for a sealed copy kept at the office of the Supervisor of the State Bureau of Identification. 11 Del. C. §4373.
The sealed records can then only be viewed by a court or by "law-enforcement officers acting in the lawful performance of their duties...or for the purpose of an employment application as an employee of a law-enforcement agency." 11 Del. C. §4374.
Why is this important? Because a criminal record can hurt an innocent person's opportunities to gain employment, education, and credit. By expunging a criminal record, potential employers, schools and lenders aren't able to learn of an innocent person's past arrests.
Who is eligible for expungement? 11 Del. C. §4372 sets out three specific circumstances where expungement of a Delaware criminal record can be expunged.
- The first is when a person is acquitted (found not guilty) of a crime.
- The second is when a notice of nolle prosequi is entered (the state decides to drop the charges).
- The third is a dismissal by the Court.
If any of these three circumstances occurs, the person charged is eligible to petition the Superior Court for an expungement. The petition and the proposed order ask the Court to expunge the record. It is up to the Superior Court to review the petition and decide if the expungement shall be granted or not.
If a person has an old conviction, can a new acquittal be expunged? No, if there are any convictions on a person's record, then the record cannot be expunged. A record is expunged so that an innocent person will not be hindered by an arrest record. If someone is found or pleads guilty, the damage is already done.
When should an expungement petition be filed? As soon as possible. A petition for expungement of criminal records should be filed right after the person becomes eligible either by acquittal, nolle prosequi, or dismissal. This way, the potential creditors or employers who would be able to see the record is kept to a minimum.
Even after an expungement is granted, it is still a good idea to have a criminal record search done a few months later to make sure the expungement process was completed. If the expungement has been successful, no record will be found.
Generally, while the drafting of a petition for expungement can be complicated, expungement is a relatively simple and inexpensive process. The problem is that many people and their lawyers are so happy to be done with a criminal case that they forget all about expunging the record.
A criminal record is something that most people don't think about until it comes back to haunt them. An expungement is a relatively easy way to alleviate those headaches down the line.