What is Expungement?

Basically, expungement is the sealing of a person's criminal record. The expungement process does not erase the criminal record, but simply seals the record from public view. All copies of the record are shredded and erased from databases except for a sealed copy kept at the office of the Supervisor of the State Bureau of Identification. 11 Del. C. §4373. The sealed records can then only be viewed by a court or by "law-enforcement officers acting in the lawful performance of their duties...or for the purpose of an employment application as an employee of a law-enforcement agency." 11 Del. C. §4374.

Why is this important? Because a criminal record can hurt an innocent person's opportunities to gain employment, education, and credit. By expunging a criminal record, potential employers, schools and lenders aren't able to learn of an innocent person's past arrests.

Who is eligible for expungement? 11 Del. C. §4372 sets out three specific circumstances where expungement of a Delaware criminal record can be expunged. The first is when a person is acquitted (found not guilty) of a crime. The second is when a nolle prosequi (the state decides to drop the charges) is entered. The third is a dismissal by the Court. If any of these three circumstances occurs, the person charged is eligible to petition the Superior Court for an expungement. The petition and the proposed order ask the Court to expunge the record. It is up to the Superior Court to review the petition and decide if the expungement shall be granted or not.

If a person has an old conviction, can a new acquittal be expunged? No, if there are any convictions on a person's record, then the record cannot be expunged. A record is expunged so that an innocent person will not be hindered by an arrest record. If someone is found or pleads guilty, the damage is already done.

When should an expungement petition be filed? As soon as possible. A petition for expungement of criminal records should be filed right after the person becomes eligible either by acquittal, nolle prosequi, or dismissal. This way, the potential creditors or employers who would be able to see the record is kept to a minimum.

Even after an expungement is granted, it is still a good idea to have a criminal record search done a few months later to make sure the expungement process was completed. If the expungement has been successful, no record will be found.

Generally, while the drafting of a petition for expungement can be complicated, expungement is a relatively simple and inexpensive process. The problem is that many people and their lawyers are so happy to be done with a criminal case that they forget all about expunging the record. A criminal record is something that most people don't think about until it comes back to haunt them. An expungement is a relatively easy way to alleviate those headaches down the line.

NOTE: This post refers to expungement for criminal records of adults. A post on expungements for juvenile records will be coming soon.

Here are a few expungement related articles on celebrities:
First daughter, Jenna Bush
Basketball star, Allen Iverson
Pop singer and talent judge, Paula Abdul


UPDATE 5/16/05

In response to my entry of 4/11/05 about expungement, we received an email from John Sandy, Esquire of Stumpf Vickers & Sandy, P.A. in Georgetown, Delaware. He notes that when there is a previous conviction, it is still sometimes possible to get a new criminal charge expunged. He says in part:

4373 (a) states that the existence of the previous conviction is "prima facie" evidence that dissemination of information relating to the arrest to be expunged does not constitute a manifest injustice to the petitioner. Prima facie evidence is conclusive on the issue unless rebutted.

In my own practice, on several occasions, when the previous conviction was remote in time and/or considerably different in degree or nature, I have been able to convince the DOJ not to oppose the motion or the court of the "manifest injustice" over the State's objection. Within the past year I had a young lady turned down for a job with the Dept. of Corrections (I didn't think that they turned anyone down) on the basis of an arrest for Assault 3rd on her boyfriend. That charge was subsequently dismissed but because she had had an Under Age Consumption on her record 3 years earlier the DOJ opposed the motion. When I produced the letter from DOC stating that it was the assault arrest that kept her from being hired and pointed out that this was not a plea bargain where she pled to the alcohol charge in return for a dismissal of the assault, the DOJ withdrew its objection (but noted the previous conviction in its response to the court). The court granted the motion knowing that she had previously been convicted.

Another point that was not addressed in my previous entry, but that Mr. Sandy brought to my attention is that when a person is involuntarily committed to a mental hospital in Delaware, it is noted on that person's record and can be viewed by anyone with access to the criminal record. However, these records can also be expunged. Mr. Sandy writes:

I have twice been successful in having the "Mental Patient" notation removed (sealed) from the SBI record. In both cases SBI itself vehemently opposed and the DOJ took up their position. The cases, about 5 years apart, were nearly identical. Both involved young women applying for jobs that required a background check. As I recollect, they were both applying for teaching positions. At the time of their petitions both were in their mid twenties. In each case, when they were 15 or 16, they threatened (but did not attempt) suicide over breakups with boyfriends. In both cases, alarmed parents enlisted the aid of the State Police and 72 hour commitments were procured. Both girls were released before the 72 hours elapsed and neither ever had any other problem. Clearly, a background check would have been severely detrimental to their teaching careers. A reading of the statue clearly stated that "adult" commitments were to be reported. Despite the fact that the records should never have been made available to SBI the State opposed sealing the record. In both cases the court (Graves in one and Bradley in the other) granted the motion. I am surprised that some of the mental health advocates have not taken up the issue of the inclusion of this information in the SBI records.

Thank you Mr. Sandy for your insights.

Child Support, Spousal Support, and Parent Support

An interesting but uncommonly used Delaware Law provides that we as parents may be required to support our children, even after they turn 18. In fact, the tables may at some point turn and have the children required to support their parents.

Title 13 of the Delaware Code, at Section 503, establishes a legal duty to support our spouses, parents and children, if they are a poor person and unable to support themselves.

The duty to support that person does not mean, however that we are necessarily responsible for their debts. A duty to support would mean that we would have a legal responsibility to contribute a certain amount of money to that person for their living expenses. This is different from saying that we have to pay off their credit cards or other debts.

It is important that each case be discussed and evaluated on its own merits with a Delaware lawyer who is proficient with this topic.

The Connecticut Law Blog

Welcome, The Connecticut Law Blog. I will be looking to you for hot topics in Connecticut!

The Image of Lawyers

A well written law student from Delaware temporarily enjoying Carlisle Pennsylvania, Mark Cutrona, has written a nice piece about the decayed public image of lawyers, and suggests steps to help us improve that image.

I agree with Mark's suggested steps, and add just one more:

I believe that the root of the public's misperception of the profession is in its misunderstanding of it. As in many things, one dark side of human nature is to shun or disparage things that are different and insular and particularly those things that are not understood. And so I believe for the image of lawyers to be improved, it is necessary to educate the public as to what we do and how their hard earned dollars are spent.

We can go a long way towards this by dispelling myths, such as: "all the lawyers do is fill out a form, and for this they get way too much money". Almost without exception, my estate planning clients exclaim that the process involves many more legal issues than they had previously imagined. Writing a Last Will and Testament for someone is vastly more complex than filling their name into a blank on a form. But until the public understands this, they will never understand why it costs more than $20 for a Will.

The catch 22 is that to fully educate the public as to the complexities of the paths we attorneys walk with them, we almost have to make lawyers of them all.

Living Wills, in light of Schiavo

We have experienced a surge of client inquiries about Living Wills, Durable Powers of Attorney, Medical Powers of Attorney, and such related documentation in the last several weeks.

Many of these inquirers make reference to the Schiavo case, and say that they are making these plans because they don't want their family to go through what Terri Schiavo's family has been going through.

If there is any good to come from the disaster of the situation in Florida, perhaps it is that it has encouraged others to avoid it.

New Internet Law Blawg

Ernie The Attorney pointed out to me that Evan Brown, Esquire has set up a new blog at InternetCases.com. It looks great Evan!

An Ounce of Planning is Worth a Pound of Probate

Every day I see unfortunate circumstances that have developed because somebody was cutting corners. Many people don't understand the legal process and therefore think that they don't need it. But sooner or later it catches up to them, or their estate, in triplicate.

Here are some areas where I see these sorts of problems most frequently:

1. Person dies owning land, and the family continues on without probating the estate.

2. Person doesn't make a will.

3. Person doesn't make a Durable Power of Attorney.

4. Person makes a homemade will or uses a standardized will form.

5. Person adds another person to a deed for property, without an attorney.

Not every time one of these circumstances occur, is there necessarily catastrophic results. But most of the time I see these circumstances, the problems that result cost many thousands of dollars to repair. All to save a couple of hundred dollars to do it right in the first place. And the cost in dollars is only part of the result in cutting legal corners. The time and aggravation costs to the family are much greater when everything has to be repaired, rather than prepared.