Delaware Expungement Statutes: Understanding 11 Del. C. §4373 and §4374

Two Statutes, Two Pathways

Delaware's two primary adult expungement pathways run through 11 Del. C. §4373 and 11 Del. C. §4374. The non-conviction provisions also appear in §§4372 and 4373A, while related pardon and effect-of-expungement rules appear elsewhere in the subchapter. Knowing which pathway governs your situation determines whether you file an administrative application with the SBI or a formal petition in court — and whether a judge even has a say in the outcome.

Here's the practical difference: §4373 covers mandatory expungement (the state must grant relief if you meet the criteria), while §4374 governs discretionary expungement (a judge decides whether keeping your record causes a "manifest injustice"). The gap between those two tracks matters more than most people expect.

§4373: Mandatory Expungement

Section 4373 is a principal statute behind Delaware's automatic Clean Slate sweeps and the administrative SBI petition process. If your record fits the criteria, the state is legally required to expunge it — no judicial discretion, no hearing, no argument from prosecutors.

The qualifying categories under §4373 include:

• Non-conviction dispositions — acquittals, dismissals, and nolle prosequi entries. No waiting period applies. These are eligible immediately, whether through the automated sweep or a manual SBI petition.
• Single violation convictions — if at least three years have passed since the conviction date and you have no prior or subsequent convictions on your record.
• Eligible misdemeanor convictions — a single misdemeanor not on the exclusion list in §4373(b), with a five-year conviction-free waiting period.
• Stale charges — under §4373(a)(3), any arrest or charge that's sat without a recorded disposition for seven or more years, with no active warrant and no case activity in the past twelve months, is treated as dismissed for expungement purposes.

One detail that catches people off guard: the statute excludes certain misdemeanors from the mandatory track even if the waiting period is met. Domestic violence offenses, vehicular assault in the second degree (§628A), coercion (§791), unlawfully dealing with a child (§1106), and trespassing with intent to peer (§820) all fall outside §4373's mandatory coverage. If your conviction is on that exclusion list, §4374 is your route.

The statute also carves out underage alcohol convictions under 4 Del. C. §904(e)/(f) and personal-use marijuana possession under 16 Del. C. §4764(c) from counting as "prior or subsequent convictions." Those records won't block your eligibility for mandatory expungement of other offenses.

§4374: Discretionary Expungement

Section 4374 is where things get more involved. This statute covers cases that don't qualify for mandatory relief — excluded misdemeanors, eligible non-violent felonies, and situations where multiple convictions make the mandatory path unavailable.

The core standard under §4374 is "manifest injustice." You have to demonstrate to a judge that keeping the record on public databases causes harm that outweighs the state's interest in maintaining it. That's a subjective standard, which means your petition's quality matters.

Key provisions under §4374:

• Excluded misdemeanors require a seven-year conviction-free waiting period before you can petition.
• Non-violent felonies (generally Class F and Class G) require a seven-year waiting period from conviction or release from incarceration, whichever is later.
• Violent felonies, sexual offenses, and crimes against children are permanently ineligible — unless you first obtain an unconditional Governor's Pardon under §4375, which opens the door to a discretionary petition.

The procedural mechanics under §4374 differ substantially from the §4373 track. You file a formal petition in either Superior Court or Family Court (depending on where the original case was resolved), the Attorney General's office gets 120 days to review and potentially object, and a judicial officer makes the final call — usually on the written filings alone, without a hearing.

Why the Distinction Matters

The practical stakes between §4373 and §4374 are significant:

If your case qualifies under §4373, you generally want to pursue that track first. The automated Clean Slate sweeps process §4373-eligible records without any action on your part — though the backlog means many eligible records haven't been reached yet. Over 64,000 cases were cleared in the June 2026 automated batch, but more than a million remain in the pipeline.

For cases that require the §4374 route, preparation matters. A judge weighing "manifest injustice" will look at your rehabilitation evidence, employment history, community ties, and the nature of the original offense. The petition itself is your primary advocacy tool, since most discretionary cases are decided without a hearing.

Navigating the Statutes

If you're trying to figure out which statute applies to your specific situation — and what that means for your paperwork, timeline, and filing venue — the Delaware Expungement & Record Sealing Guide walks through the eligibility analysis step by step. It maps each offense type to the correct statutory pathway and covers the filing procedures for both the SBI administrative track and the court petition process.

See more Delaware guides →