CHAPTER 317

FORMERLY

HOUSE SUBSTITUTE NO. 1

FOR HOUSE BILL NO. 394

AS AMENDED BY HOUSE AMENDMENTS NOS. 1, 2, 3, 4, AND 5

AN ACT TO AMEND CHAPTER 43, PART H, TITLE 11 OF THE DELAWARE CODE RELATING TO CRIMINAL PROCEDURES; AND PROVIDING FOR EXPUNGEMENT UNDER CERTAIN CIRCUMSTANCES.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Subchapter VII, Chapter 43, Part 11, Title 11 of the Delaware Code by re-designating said Subchapter as new Subchapter VIII; and by re-designating present §4371 through §4374 as new §4381 through §4384.

Section 2. Amend Chapter 43, Part II, Title 11 of the Delaware Code by adding thereto a new Subchapter, designated as Subchapter VII, which new Subchapter shall read as follows:

"SUBCHAPTER VII. EXPUNGEMENT OF CRIMINAL RECORDS 54371. Expungement; Statement of Policy

The General Assembly finds that arrest records can be a hindrance to an innocent citizen's ability to obtain employment, obtain an education, or to obtain credit. This Subchapter is intended to protect innocent persons from unwarranted damage which may occur as the result of arrest and other criminal proceedings which arc unfounded or unproven.

§4372. Termination of Criminal Action in Favor of the Accused

(a) If a person is charged with the commission of a crime and

(1) is acquitted; or

(2) a nolle prosequi is taken, or the charge is otherwise dismissed,

he may file a petition setting forth the relevant facts and requesting expungement of the police records, and the court records relating to the charge.

(b) The petition shall be filed in the Superior Court in the county where the ease was terminated, disposed of or concluded,

(e) A copy of the petition shall be served on the Attorney General, who may file an objection or answer to the petition within thirty days after it is served on him.

§4373. Hearing by Court; Granting or Denial of Expungement

(a) 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. Otherwise, it shall deny the petition. 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 continuance existence and possible dissemination of information relating to the arrest in question does not constitute a manifest injustice to the petitioner.

(b) The State of Delaware 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.

(c) If an Order expunging the records is granted by the Court, all the records specified in the Order shall within sixty 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. In response to requests from non-law 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.

§4374. Disclosure of Expunged Records

(a) Except for disclosure to law enforcement officers acting in the lawful performance of their duties in investigating criminal activity or for the purpose of an employment application as an employee of a law enforcement agency, it shall be unlawful for any person having or acquiring access to an expunged court or police record to open or review it or to disclose to another person any information from it without an Order from the court which ordered the record expunged.

(b) Where disclosure to law enforcement officers in the lawful performance of their duties in investigating criminal activity is permitted by subsection (a), such disclosure shall apply for the purpose of investigating particular criminal activity in which the person, whose records have been expunged, is considered a suspect and the crime being investigated is a felony or pursuant to an investigation of an employment application as an employee of a law enforcement agency.

(c) Nothing contained in this section shall require the destruction of photographs or fingerprints taken in connection with any felony arrest and which are utilized solely by law enforcement officers in the lawful performance of their duties in investigating criminal activity.

(d) Nothing herein shall require the destruction of court records or records of the Department of Justice. However, all such records, including docket books, relating to a charge which has been the subject of a destruction order shall be so handled to ensure that they are not open to public inspection or disclosure.

(c) 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.

(f) Any person who violates the provisions of subsection (a) of this section shall be guilty of a class B misdemeanor, and shall be punished accordingly.

§4375. Notification to Federal Agencies

Upon the granting by the Court for an Order for the expungement of records in accordance with this subchapter, a copy of such Order shall be forwarded to the federal Department of Justice."

Section 3. Section 3904, Title 11, Delaware Code is hereby repealed in its entirety.

Approved July 8, 1980.