Pardons and Expungements
Delaware Expungement Lawyer & Delaware Governor’s Pardon Attorney
There are generally two ways to clean up your criminal record: an expungement and a governor’s pardon.
Some individuals have made mistakes and poor decisions in the past that have resulted in a criminal arrest record. This could be a minor lapse in judgment or a serious accusation. Some people have been falsely accused and the charges are eventually thrown out. In some cases, years have passed, the person has led a law-abiding life and he or she now wishes to clean their criminal record. The procedure to do this is called a Petition for Expungement. An expunged record is a publicly erased record. If the Petition is granted, the court will order the Delaware State Bureau of Identification, the arresting police department and all associated courts to remove your criminal record from the view of the public, prospective employers, educational facilities, etc.
"Many individuals wrongly believe that their criminal record is sealed or destroyed over time; nothing could be further from the truth. In today’s day and age of readily available information, a person’s arrest record — even their juvenile record — may be accessed and made public. Some investigating firms make a lot of money researching the court files and downloading vast amounts of information about you and your past mistakes. In addition, employers and educational institutions are now requiring applicants to divulge arrests -- even for cases that were ultimately dismissed. An expungement is an opportunity to protect your privacy and to regain your good name."
A person who’s record has been expunged is legally entitled to report that they have never been arrested or convicted. It’s important, therefore, that the expungement process is handled correctly, efficiently, and in a timely manner. John Deckers has helped more than a thousand people clean up their records.
Not all criminal records qualify for an expungement. If you were charged with the commission of one or more crimes and you were either acquitted following a trial, or a nolle prosequi was entered (i.e., the prosecutor dropped the charges), or the charge(s) were otherwise dismissed by the court, then you will probably want to immediately request an expungement of your police and court records. This is a two-part process: (1) obtain a certified copy of your Delaware criminal record, and (2) apply, if eligible, for an expungement in the appropriate venue.
There are two categories of expugnable arrest records: mandatory and discretionary. For certain crimes, the expungement is “mandatory” (i.e., nearly automatic) once you obtain your record and pay a fee to the State Bureau of Identification. If you were arrested for any of the following charges, however, you are not eligible for a “mandatory” expungement, even if the prosecution was subsequently terminated in your favor (i.e., case dismissed, not guilty, etc.): any felony, any misdemeanor “sex” offense, offensive touching, menacing, reckless endangering second degree, assault third degree, abuse of a sports official, terroristic threatening, unlawfully administering drugs, vehicular assault second degree, trespassing with intent to peer or peep, endangering the welfare of a child or an incompetent person, most misdemeanors alleging public corruption, and patient abuse. In these cases, you’ll need to apply for a more involved and formal “discretionary” expungement process: you’ll be required to pay a filing fee with the appropriate court, serve notice to the court and to the Attorney General, and prepare and file a detailed application/petition. Some expungement matters may require a hearing, but a hearing is not required in all cases. The burden will be on the applicant/petitioner to prove that the continued existence and possible dissemination of information relating to their arrest constitutes “a manifest injustice.” If a person has a previous conviction on their record, then their expungement request will most likely be denied.
An individual may apply for a Governor’s pardon if they have been convicted of a criminal offense as an adult. If you were found guilty or pled guilty to anything other than a traffic violation, then you were convicted of a criminal offense.
A Governor’s pardon is an act of executive grace, which completely eliminates all consequences of a conviction but does not, in and of itself, remove the record of the conviction. A pardon does not remove the historical fact of the conviction from the state’s official arrest and conviction records; it simply adds to the record that a pardon has been granted. When an individual is asked whether they have ever been convicted of a criminal offense, they must answer “yes”, but they may explain that they were granted a pardon.
Under Delaware’s expungement law, if a person was convicted of a misdemeanor or violation, except for some specifically exempted crimes (such as ‘sex’ offenses, public corruption offenses, etc.), and is thereafter pardoned by the Governor, they may now apply to the court for a “discretionary” expungement of their arrest and prior conviction record. The law places a heavy burden on the petitioner, however, to prove that the continued existence of a criminal record constitutes a “manifest injustice.” Under Delaware’s current expungement law, if a person was convicted of a felony, they are not eligible to have their arrest and prior conviction record expunged, even if the felony conviction is subsequently pardoned by the Governor.
JUVENILES AND THE SEX OFFENDER REGISTRY
In a May 27, 2009 Delaware Supreme Court decision, Delaware v. Fletcher, the Court substantially opened opportunities for juveniles convicted of sex offenses. Now, when a juvenile’s record is expunged, all indicia of the arrest, including placement on the Sex Offender Registry if the underlying adjudication was a sex offense, are removed from the record. It is now clear, absent some subsequent legislation, that, when a juvenile’s record is expunged, his or her Sex Offender status will be removed. When presenting a petition for an expungement of a juvenile’s Sex Offender adjudication, it will be important to establish the following: (1) that the juvenile successfully completed probation, (2) that the juvenile successfully completed counseling (it will be important to record this in some form or fashion), (3) that the juvenile has not been subsequently arrested, (4) that the juvenile has suffered actual prejudice as a result of the adjudication (loss of job or educational opportunities; alienation, humiliation, retaliation and/or vigilantism from classmates, peers, neighbors, etc.), and (5) establish a need for the expungement so that the child can reinitiate his life without the burdens of the Sex Offender Registry. As in most cases, it will be helpful to document (with the assistance of appropriate mental health experts) that the offenses were the result of “juvenile sexual immaturity” or “inappropriate sexual exploration,” as opposed to any predatorial type of conduct.
If you or someone you know is seeking to expunge a criminal record or to seek a governor’s pardon, call Delaware Expungement Attorney John Deckers at (302) 656-9850 for a consultation.
OTHER Practice Areas
Felonies & Misdemeanors
Acts Resulting in Death
Assaults & Related Offenses
Firearms & Other Weapons
Motor Vehicle Offenses
Theft & White Collar Crimes
Forfeiture Cases & Money Seizures
Pardons & Expungements