SENATE BILL NO. 400
AN ACT TO AMEND CHAPTER 9, TITLE 10 OF THE DELAWARE CODE RELATING TO THE FAMILY COURT; AND PROVIDING FOR THE EXPUNGEMENT OF CERTAIN ADULT CRIMINAL RECORDS.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend Chapter 9, Title 10 of the Delaware Code by redesignating present §930 through §939, Part A of Subchapter III as new §1001 through §1011; by re-designating present §940 through §943, Part 8, Subchapter III as new §1021 through §1024; by redesignating present §944, Part C, Subchapter III as new §1031; by redesignating present §945 through §952 as new §1041 through §1048; by redesignating present §960 through §962, Part E, Subchapter III as new §1051 through §1053, and by redesignating present §970 through §974 as new §1061 through §1065.
Section 2. Amend Part B, Subchapter III, Chapter 9, Title 10 of the
Delaware Code by adding thereto the following new sections:
"§1025 Expungement: hearing by the Court
(a) If an adult under the jurisdiction of this court has been 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 Family Court in the county where the case was terminated, disposed of or concluded.
(c) A copy of the petition shall be served on the Attorney General, who may file an objection or answer to the petition within 30 days after it is served on him.
(d) 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 continued existence and possible dissemination of information relating to the arrest in question does not constitute a manifest injustice to the petitioner.
(e) 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.
(f) 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 any person not specifically
authorized, 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.
§1026. Expungement: records: access by lay-enforcement officers
(a) Except for disclosure to law-enforcement officers acting fin 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) of this section, 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.
(e) 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) 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 United States Department of Justice.
(a) Any person who violates §1025 of this section shall be guilty of a class B misdemeanor, and shall be punished accordingly."
Approved July 8, 1994.