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Legislation Document
SPONSOR:
Sen. Brown & Rep. Cooke
Sens. Paradee, Sokola, Townsend; Reps. Bolden, Morrison
DELAWARE STATE SENATE
153rd GENERAL ASSEMBLY
SENATE BILL NO. 124
AN ACT TO AMEND TITLE 10 AND TITLE 11 OF THE DELAWARE CODE RELATING TO EXPUNGEMENT.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend § 4372, Title 11 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§ 4372. Applicability; definitions; effect of expungement.
(c) For the purposes of this subchapter:
(1)
a.
“Case” means a charge or set of charges related to a complaint or incident that are or could be properly joined for prosecution.
b. “Case” does not include a Title 21 offense, or an equivalent offense, or a civil violation that is or could be joined for prosecution with another charge or set of charges related to a complaint or incident.
(5) “Title 21 offense, or an equivalent offense” means an offense under Title 21, or an offense under any county or municipal code, ordinance, or regulation which is the same as, or equivalent to, any offense under Title 21.
(f)
Exclusions. —
Except as otherwise provided under § 4375 of this title, the following exclusions apply:
(1) Except as otherwise provided under paragraph (b)(6) of this section, a person is not eligible for an expungement while the person has pending criminal charges. For purposes of this paragraph (f)(1), “pending criminal charges” does not include an alleged violation of any of the following:
a. Section 904(e) or (f) of Title 4.
b. Section 4764(c) of Title 16.
c. A Title 21
offense.
offense, or an equivalent offense.
(2)
Except as otherwise provided under § 4374(i) of this title, offenses under Title 21, or their equivalent, are
A Title 21 offense, or an equivalent offense, is
not eligible for expungement.
(h)
(1)
A prior or subsequent conviction of a Title 21 offense
An arrest or conviction of
a Title 21 offense, or an equivalent offense, or a finding of, or agreement to, responsibility for a civil violation
does not operate as a bar to eligibility for discretionary or mandatory expungement under this subchapter.
(2) A court or the State Bureau of Identification
may not deny a request for a discretionary or mandatory expungement under this subchapter because the set of charges for which the discretionary or mandatory expungement is sought includes an arrest or conviction of a Title 21 offense, or an equivalent offense, or a finding of, or agreement to, responsibility for a civil violation.
Section 2. Amend § 4374, Title 11 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§ 4374. Discretionary expungement; application to court.
(a) Eligibility. — Upon petition to the appropriate court designated in subsection (c) of this section, an expungement may be granted if the applicant meets 1 of the following:
(4) Was convicted of 1 or more violations or misdemeanors other than those listed in § 4373(b) of this title in more than 1 case and at least 5 years have passed since the date of the most recent conviction or the date of release from incarceration, whichever is later, and the person has no other prior or subsequent convictions that would not be eligible for a mandatory expungement under § 4373 of this title standing alone. For eligibility under this
paragraph,
paragraph (a)(4),
the entire case in which each conviction appears must be eligible for expungement.
(i)
(1) Notwithstanding any provision of this subchapter or any other law to the contrary, the law-enforcement agency records and the court records relating to any charge under Title 21, or in any county or municipal code, ordinance, or regulation which is the same as, or equivalent to, any Title 21 offense, may not be expunged under this subchapter unless the charge is one of those specifically enumerated in paragraph (i)(2) of this section.
(2) Discretionary expungement under this section is 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 of the following Title 21 offenses:
a. Driving after judgment prohibited, under § 2810 of Title 21.
b. Reckless driving, under § 4175 of Title 21.
c. Operation of a motor vehicle causing death, under § 4176A of Title 21.
d., e. [Repealed.]
[Repealed.]
Section 3. Amend § 1015, Title 10 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§ 1015. Filing an expungement petition.
(b)
Prohibitions to
expungement.
expungement; Title 21 offense, or an equivalent offense, or civil or administrative violation not a prohibition to expungement.
—
Except for cases eligible for expungement under § 1017(a)(1) through (a)(2) of this title, all of the following apply:
(4)
a.
Offenses under Title 21 are
Exception as provided under paragraph (b)(4)b. of this section, a Title 21 offense, or an equivalent offense, or a civil violation is
not eligible for
expungement and are
expungement, is
not considered an adjudication
of delinquency
or
adult
conviction for purposes of
this statute.
§§ 1014 through 1019 of this title, does not operate as a bar for expungement under §§ 1014 through 1019 of this title, and may not be the basis for a denial of a discretionary or mandatory expungement under §§ 1014 through 1019 of this title.
b.
However, a
A
felony conviction for driving a vehicle while under the influence is considered a conviction for purposes of
this statute.
§§ 1014 through 1019 of this title.
Section 4. Amend § 1016, Title 10 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§ 1016. Definitions applicable to juvenile expungements.
For purposes of juvenile expungement, unless the context otherwise requires:
(3)
a.
“Case” means a charge or set of charges related to a complaint or incident that are or could be properly joined for prosecution.
b. “Case” does not include a Title 21 offense, or an equivalent offense, or a civil violation that is or could be joined for prosecution with another charge or set of charges related to a complaint or incident.
(7) “Title 21 offense, or an equivalent offense” means an offense under Title 21, or an offense under any county or municipal code, ordinance, or regulation which is the same as, or equivalent to, any offense under Title 21.
SYNOPSIS
In Cornette v. State, 2024 Del. Super. Lexis 455 (June 11, 2024), the Superior Court denied a discretionary expungement because the applicant’s case included a Title 21 conviction. The Court held: “Pursuant to 11 Del. C. § 4372, in order for the Court to grant expungement the entire case must be eligible for expungement. This means that all charges within one case must be expungable. The Court will not split convictions and expunge a conviction in one case where the other charges within the same case are not expungable.”
This Act makes all of the following clear:
(1) The General Assembly’s intent in enacting some of the recent changes to Delaware’s expungement laws was to make clear that Title 21 offenses do not operate as a bar to an individual seeking, or a court or the State Bureau of Identification granting, a discretionary or mandatory expungement, even if the Title 21 offenses are combined in the same case with other offenses that are eligible for expungement.
(2) A civil violation is not a bar to an individual seeking, or a court or the State Bureau of Identification granting, a discretionary or mandatory expungement, even if the civil violation is combined in the same case with other offenses that are eligible for expungement.
(3) The definition of “case” does not include a Title 21 offense, or an equivalent offense, or a civil violation that is or could be joined for prosecution with another charge or set of charges related to a complaint or incident. Therefore, a court or the State Bureau of Identification may not deny a request for a discretionary or mandatory expungement under this subchapter because the set of charges for which the discretionary or mandatory expungement is sought includes a conviction of a Title 21 offense, or an equivalent offense, or a finding of, or agreement to, responsibility for a civil violation.
(4) Driving after judgment prohibited, reckless driving, and operation of a motor vehicle causing death are not eligible for discretionary expungement as they are not reported on certified criminal histories.
(5) References to Title 21 offenses include an offense under any county or municipal code, ordinance, or regulation which is the same as, or equivalent to, any offense under Title 21 of the Delaware Code.
Author: Senator Brown