WHEREAS, Delaware law currently provides for the expungement of police and court records when a person has been charged with the commission of one or more criminal acts and when the case is, thereafter, terminated in favor of the accused; and

WHEREAS, a person whose record has been expunged is not be required to disclose the existence of the arrest, or any subsequent court proceedings, to any persons; and

WHEREAS the Legislature, recognizing that otherwise-law abiding citizens who commit a single minor criminal offense should be given the opportunity to avoid the stigma of a criminal conviction, has created two programs to provide an avenue for first-time offenders to resolve their criminal cases without an adjudication of guilt, including the Probation Before Judgment (“PBJ”) Program and the First Offenders Controlled Substances Diversion Program (“CSDP”); and

WHEREAS, the PBJ and CSDP programs are avenues for a defendant to resolve his or her case without an adjudication of guilt with minimal cost and involvement of judicial resources; and

WHEREAS, the Delaware Supreme Court has recognized that “discharge from [PBJ]” “is one of the categories of cases expressly eligible for expungement.” Ryan v. State, 791 A.2d 742 (Del. 2002); and

WHEREAS, the 144th General Assembly, through House Bill No. 496, amended the Delaware Code so that individuals who have successfully resolved their cases by either PBJ or CSDP are no longer eligible to apply for prompt expungement of their arrest records; instead, individuals must wait five years after successful discharge from PBJ and two years from discharge from CSDP before they are eligible to apply for an expungement; and

WHEREAS, the declared purpose of Delaware’s expungement statute is “to protect innocent persons from unwarranted damage which may occur as the result of an arrest or other criminal proceedings which are unfounded or unproven”; and

WHEREAS, currently a variety of information relating to an individual’s criminal record, including the individual’s conviction records and the individual’s arrest history, may readily be obtained through the Internet by private investigators, potential employers, schools and members of the public; and

WHEREAS, the amended expungement law prohibits the State Bureau of Identification from disseminating criminal history record information to persons or entities outside of the criminal justice system relating to charges resolved by either the PBJ or the CSDP program, but this has not been sufficient to shelter first time offenders from public scrutiny; and

WHEREAS, the amended expungement law is ambiguous as to whether a person who obtained a PBJ must report the arrest record even though there technically is “no record” once the terms and conditions of the PBJ have been completed; and

WHEREAS, many job, college and graduate school applications, which historically did not inquire into the existence of a criminal record or inquired only into felony convictions, now ask applicants the question: “Have you ever been arrested for a criminal offense, other than a minor traffic offense?”; and

WHEREAS, the combination of the amended expungement law, the ambiguity of certain statutes, and the abundance of arrest information available on the Internet has had a profoundly negative impact on otherwise law-abiding citizens in their pursuit of, among other things, employment and admission to college.

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

SECTION 1. Amend Chapter 43, Title 11 of the Delaware Code by striking § 4378 in its entirety.

SECTION 2. Amend Chapter 85 of Title 11 of the Delaware Code by striking § 8513(h) in its entirety.

SECTION 3. Amend § 4373, Title 11 of the Delaware Code by adding a new subsection (f) thereto, as follows: “(f) 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.”

SECTION 4. Amend § 4374, Title 11 of the Delaware Code by adding a new subsection (i) thereto, as follows: “(i) 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.”

SECTION 5. Amend Title 10 of the Delaware Code by striking § 1026 in its entirety.

SECTION 6. Amend § 1025(d), Title 10 of the Delaware Code, by inserting the language “, including any electronic records,” after the words “police records and court records” in the first sentence, and by inserting the following in subparagraph (1) after the words “A court” in the second sentence: “or a police agency”.

SECTION 7. Amend § 1025(e), Title 10 of the Delaware Code by inserting the following after the words “subsection (d) of this section”: “, provided, however, that where a person was charged with a criminal offense where discretionary expungement pursuant to this subsection applies, but also was charged, within the same case, with a criminal offense where mandatory expungement pursuant to § 1025 applies, such person must file a petition in the Family Court pursuant to this Section.”.

SECTION 8. Amend § 1025(e)(2), Title 10 of the Delaware Code by inserting the following at the end of the second sentence: “or case.”.

Section 9. Amend § 1025(e)(5) of Title 10 of the Delaware Code by inserting the following after the end of the first sentence and before the beginning of the second sentence. “A police agency which receives a notice of expungement from the State Bureau of Identification shall provide the Bureau with written confirmation of the completion of the expungement.”.

SPONSOR:	Rep. M. Marshall & Sen. McDowell & Sen. Venables
	Reps. Bennett, J. Johnson, Keeley, Kovach, Kowalko, Mulrooney, Plant, Schooley, B. Short