Delaware Code Title 11. Crimes and Criminal Procedure § 4374. Discretionary expungement

(a) 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) After the petition requesting expungement is filed with the Superior 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.

(c) 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 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 subsection (e) of this section shall be granted by the Court.

(d) 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) 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.

(f) 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  1 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)(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) of this section.

(2) Discretionary 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) The Superior Court shall establish a reasonable fee schedule for the filing of a petition of expungement pursuant to this section.

(i) 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.

1 So in enrolled bill;  probably should have “of”.

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