Del. high court to look at expungement eligibility
DOVER, Del. – Attorneys for three men seeking to expunge their Delaware criminal records say their applications have been wrongfully denied because of convictions in other states.
Delaware's Supreme Court heard arguments Wednesday on whether a Superior Court judge erred last year in ruling that the men were ineligible for expungement because of their out-ofstate convictions. The case involves the interpretation of a 2019 law that expanded eligibility for the expungement of criminal records. Under the previous law, a person was eligible for expungement only if an arrest did not lead to conviction, or if the person had been granted a pardon – but only for certain misdemeanor offenses.
The new law mandates expungement for arrests that do not lead to convictions, and for convictions for certain misdemeanors or violations that stem from the same case. Mandatory expungement is available if three years have passed since a conviction for a violation, or five years have passed since a conviction involving a misdemeanor.
The law also allows judges to grant discretionary expungements for many crimes, including felonies, if the applicant meets certain criteria.
In all cases, however, a person is eligible for expungement only if he or she has “no prior or subsequent convictions,” except for traffic offenses, simple possession of marijuana, or underage possession of alcohol.
Defense attorneys contend that the provision applies only to prior or subsequent convictions in Delaware. They argue that if lawmakers intended for the eligibility disqualification to encompass convictions in other states, they would have done so.
State attorneys say the expungement law is aimed at giving people who made a mistake and have a single conviction a “second chance” by clearing their record. The law is not intended to allow repeat offenders to avoid the consequences of their actions, said deputy attorney general Elizabeth McFarlan.