Delaware Misdemeanor Expungement: Eligibility, Waiting Periods, and How to File

Two Tracks for Misdemeanors

Delaware's expungement law treats misdemeanor convictions differently depending on the offense and your criminal history. You'll land on one of two tracks:

Mandatory expungement (11 Del. C. § 4373): Available for a single eligible misdemeanor conviction if you have no prior or subsequent convictions. The waiting period is 5 years from the conviction date. This track is administrative — handled entirely by the SBI, no judge involved. The SBI cannot deny a qualifying application.

Discretionary expungement (11 Del. C. § 4374): Required for misdemeanors that are on the statutory exclusion list, or when you don't meet the mandatory pathway criteria (e.g., you have additional convictions on your record). A judge decides whether keeping the record public causes "manifest injustice."

Waiting periods for discretionary cases:

• Standard misdemeanors: 3 years from conviction
• Excluded misdemeanors: 7 years from conviction

Which Misdemeanors Are Excluded from Mandatory Expungement

Under 11 Del. C. § 4373(b), certain misdemeanors cannot be cleared through the mandatory pathway and require the discretionary court petition:

• Domestic violence offenses against family members, former spouses, cohabitants, or dating partners
• Vehicular assault in the second degree (§ 628A)
• Coercion (§ 791)
• Unlawfully dealing with a child (§ 1106)
• Trespassing with intent to peer or peep (§ 820)

These offenses can still be expunged through the discretionary route, but the waiting period jumps to 7 years, and you need to persuade a judge rather than just clearing an administrative checkpoint.

Offenses That Save Your Eligibility

Two categories of minor offenses don't count against you when evaluating your eligibility for mandatory expungement of other charges:

• Underage alcohol possession or consumption under 4 Del. C. § 904(e) or (f)
• Personal-use marijuana possession under 16 Del. C. § 4764(c)

If these are the only other convictions on your record, they don't block mandatory expungement of an eligible misdemeanor. This is a specific statutory carve-out — it doesn't apply to any other offense types.

Filing Steps

Mandatory track:

1. Pull your certified criminal history via IdentoGO (Service Code 27S23V, $72)
2. Receive the SBI determination letter (~2 weeks)
3. Sign and return the mandatory application packet within 30 days with a $75 money order
4. Wait 3–6 months for processing

Discretionary track:

1. Pull your certified criminal history ($72)
2. Receive the SBI determination letter directing you to file in court
3. File the petition in the correct court — Family Court (Form 281, no filing fee) or Superior Court (Form CIV_EXP_02_A, $75 filing fee)
4. Wait up to 120 days for the AG's response
5. If the AG objects, file your written reply within 30 days
6. Wait for the judge's ruling (most cases decided on paper)

What You'll Need to Prove for Discretionary Cases

The standard for discretionary expungement is "manifest injustice" — you need to show that having the record publicly available causes ongoing harm that outweighs the state's interest in keeping it visible.

Concrete examples that courts respond to: a specific job offer contingent on a clean background check, a professional licensing application being held up, a housing application denied because of the record. The more specific and documented the harm, the stronger the petition.

If you want structured help building your petition and assembling the filing packet, our Delaware Expungement & Record Sealing Guide includes checklists for both tracks.

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