Bill Text: DE SB233 | 2013-2014 | 147th General Assembly | Draft
Bill Title: An Act To Amend Title 10 Of The Delaware Code Relating To Juvenile Expungements.
Sponsorship: Strong Partisan Bill (Democrat 17-1)
Status: (Introduced - Dead) 2014-06-03 - Assigned to Judiciary Committee in Senate [SB233 Detail]
Download: Delaware-2013-SB233-Draft.html
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SPONSOR: |
Sen. Blevins & Rep. Barbieri |
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Sens. Ennis, Hall-Long, Henry, Poore, Sokola, Venables; Reps. Baumbach, Gray, Heffernan, J. Johnson, Keeley, Mitchell, Osienski, Scott, M. Smith |
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DELAWARE STATE SENATE 147th GENERAL ASSEMBLY |
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SENATE BILL NO. 233 |
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AN ACT TO AMEND TITLE 10 OF THE DELAWARE CODE RELATING TO JUVENILE EXPUNGEMENTS. |
Section 1. Amend Chapter 9, Title 10 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
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1015 Filing an expungement petition. Petition for Expungement of
Juvenile Record.
(a) A
child, through his or her parent or parent, guardian, guardian
ad litem or attorney, or upon becoming an adult, may file a petition
seeking to expunge the child's person's juvenile arrest record.
For the purposes of �§1016-1019 of this title, the child or adult
person seeking an expungement shall be deemed "the petitioner." All
such petitions shall be filed in the Family Court in the county where the most
recent case was terminated, disposed of, or concluded, setting even
if the petition includes cases from more than one county. The petition shall
set forth the relevant facts and requesting request
expungement of the police records and court records, and all indicia of
arrest, including any electronic records, relating to the charge or
charges.
(b) The
Unless otherwise provided in this subchapter, the petitioner shall
attach a copy of that petitioner's criminal history as maintained by the State
Bureau of Identification to any petition requesting expungement filed
pursuant to this subchapter. The State Bureau of Identification may charge a
reasonable fee in providing a certified copy of the petitioner's criminal
history. The Unless otherwise provided in this subchapter, the
Court shall summarily reject any petition for expungement that does not include
the petitioner's criminal history.
(c) The
Family Court must consider the entire juvenile delinquency arrest record
in granting or denying the petition, consistent with sections �§1017 and 1018
of this title. The Court shall either grant the petition, ordering the
expungement of the petitioner's entire juvenile delinquency arrest
record, including all indicia of arrest, or deny the petition. The Court
may not order that only a portion of the petitioner's juvenile delinquency
arrest record be expunged, unless the State, pursuant to �§1017(c)
and 1018(e) of this title in the interests of justice, petitions the
Court to expunge expunges an arrest that would otherwise not
qualify for immediate and mandatory expungement under this subchapter. The
Court may order expungement of charges originating in a different county.
§1016 Definitions applicable to juvenile expungements.
(6) "Subsequent adjudication of delinquency or adult conviction" means an adjudication of delinquency or an adult conviction resulting from the commission of a separate and distinct offense punishable by 30 or more days of imprisonment, that occurs after a prior adjudication of delinquency.
§1017 Mandatory expungement.
(c) Notwithstanding any provision of this subchapter or any other statute or rule to the contrary, pursuant to paragraph (a)(1) of this section, the Court sua sponte, or any other party, may immediately move to expunge instant offense of a child without the filing of a petition or submission of a certified arrest record as required by §1015 (b) of this Title.
(cd) If
an order expunging the records is granted by the Court, all the police and
court records, records and all indicia of arrest including any
electronic records, specified in the order shall, within 60 days of the order,
be removed from the files, and placed in the control of the Supervisor of the
State Bureau of Identification who shall be designated to retain control over
all expunged records, and who shall insure that the records or the information
contained therein is not released for any reason except as specified in this
subchapter. A court or police agency that receives a notice of expungement from
the State Bureau of Identification shall provide the Bureau with written
confirmation of the completion of the expungement. The State Bureau of
Identification shall provide the Court that entered the order with written
confirmation of the execution of the order. In response to requests from
nonlaw-enforcement officers for information or records on the person who was
arrested, the law-enforcement officers and departments shall reply, with
respect to the arrest and proceedings which are the subject of the order, that
there is no record. No order requiring an expungement of any record shall be
entered or enforced if such order is contrary to the provisions of this
subchapter. The State Bureau of Identification shall promptly notify the Court
if it is unable to comply with any order issued pursuant to this subchapter.
(de) An
offense for which records have been expunged pursuant to this section does not
have to be disclosed as an arrest or adjudication by the petitioner for
any reason.
§1018 Discretionary expungement.
(3) A child has multiple adjudications of delinquency involving separate and distinct cases where the offenses for which the child was adjudicated delinquent are designated as misdemeanors or violations in Title 3, 4, 6, 7, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23, 24, 29, 30, or 31, or a county or municipal code, ordinance, or regulation which is the same as, or equivalent to any offenses and enumerated in Title 3, 4, 6, 7, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23, 24, 29, 30, or 31, and provided that the petitioner has no adult conviction, and provided that the petitioner has no pending criminal charges and provided that at least 5 years have passed following the date the final adjudication of delinquency was entered in Family Court.
(34) A
child has no more than 2 adjudications of delinquency involving separate and
distinct cases where no more than one of the offenses for which the
child was adjudicated delinquent are is designated as misdemeanors
or violations in Title 4, 7, 11, 16 or 23, or a county or municipal code,
ordinance, or regulation which is the same as, or equivalent to, any offenses
enumerated in Title 4, 7, 11, 16 or 23, a felony, excepting violent misdemeanors,
provided the petitioner has no prior adjudication of delinquency
felonies,and provided the
petitioner has no other subsequent adjudication of delinquency or adult
conviction, and provided that the petitioner has no pending criminal charges,
and provided that at least 5 years have passed following the date the second
adjudication of delinquency was entered in Family Court.
(45) A
child has no more than 1 adjudication of delinquency in a case where the
offense or offenses for which the child was adjudicated delinquent are
designated as violent felonies or felony sex offenses excepting rape first
degree (§773 of Title 11), rape second degree (§772 of Title 11), arson first
degree (§803 of Title 11), robbery first degree (§832 of Title 11), burglary
first degree (§826 of Title 11), and home invasion (§826A of Title 11),
provided the petitioner has no other prior adjudication of delinquency, and
provided that the petitioner has no subsequent adjudication of delinquency or
adult conviction, and provided that the petitioner has no pending criminal
charges, and provided that more than 5 years have passed following the date the
adjudication of delinquency was entered in Family Court.
(6) A child who is otherwise ineligible for relief pursuant to subparagraphs (1) through (5) of this section, provided that none of the adjudications of delinquency were for rape first degree (§773 of Title 11), rape second degree (§772 of Title 11), arson first degree (§803 of Title 11), robbery first degree (§832 of Title 11), burglary first degree (§826 of Title 11), or home invasion (§826A of Title 11), and has no subsequent adult convictions, and petitioner is either 21 years of age or older or at least 7 years have passed since the date the last adjudication of delinquency was entered in Family Court.
(c) Unless
the Court believes a hearing is necessary, petitions filed pursuant to this
section shall be disposed of without a hearing. If the Court finds that the
continued existence and possible dissemination of information relating to the
arrest of the petitioner causes, or may cause, circumstances which constitute a
manifest injustice to the petitioner, it shall enter an order requiring the
expungement of the police and court records and all indicia of arrest,
including any electronic records records, relating to the charge
or case. Otherwise, it shall deny the petition. Although the Court will
recognize a rebuttable presumption that juvenile records cause a manifest
injustice for the petitioner, the burden shall nevertheless be on the
petitioner to allege specific facts in support of that the
petitioner's allegation of manifest injustice, and the injustice. The
burden shall be on the petitioner to prove such manifest injustice by a
preponderance of the evidence.
(d) The
State shall be made party defendant to the proceeding. Any party aggrieved by
the decision of the Court may appeal, as provided by law in civil cases as
prescribed by Delaware Law.
(e) Notwithstanding
any provision of this subchapter or any other statute or rule to the contrary,
the Attorney General or the Attorney General's designee responsible for
prosecuting a delinquency action may petition the Court to expunge the instant
arrest record of a child if at the time of a state motion to dismiss or entry
of a nolle prosequi in the case, the State has determined that the continued
existence and possible dissemination of information relating to the arrest of
the child for the matter dismissed or for which a nolle prosequi was entered
may cause circumstances which constitute a manifest injustice to the juvenile. Notwithstanding
any provision of this subchapter or any other statute or rule to the contrary,
pursuant to paragraph (a)(1) of this section, the Court sua sponte, or any
other party, may immediately move to expunge instant offense of a child without
the filing of a petition or submission of a certified arrest record as required
by §1015(b) of this Title.
(f) If an order expunging the records is granted by the Court, all the police and court records and all indicia of arrest, including any electronic records, specified in the order shall, within 60 days of the order, be removed from the files, and placed in the control of the Supervisor of the State Bureau of Identification who shall be designated to retain control over all expunged records, and who shall insure that the records or the information contained therein is not released for any reason except as specified in this subchapter. A court or police agency that receives a notice of expungement from the State Bureau of Identification shall provide the Bureau with written confirmation of the completion of the expungement. The State Bureau of Identification shall provide the Court that entered the order with written confirmation of the execution of the order. In response to requests from nonlaw-enforcement officers for information or records on the person who was arrested, law-enforcement officers and departments shall reply, with respect to the arrest and proceedings which are the subject of the order, that there is no record. No order requiring an expungement of any record shall be entered or enforced if such order is contrary to the provisions of this subchapter. The State Bureau of Identification shall promptly notify the Court if it is unable to comply with any order issued pursuant to this subchapter.
(g) Notwithstanding any provision of this subchapter or any other statute or any other statute or rule to the contrary, the police records and the court records, including any electronic records, relating to any charge set forth in Title 21, or in any county or municipal code, ordinance, or regulation which is the same as, or equivalent to, any offense enumerated in Title 21, shall not be expunged pursuant to this subchapter.
(h) An offense for which records have been expunged pursuant to this section does not have to be disclosed as an arrest or adjudication by the petitioner for any reason.
Section 2. This Act becomes effective 90 days after its enactment into law.
SYNOPSIS
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The continued existence and dissemination of juvenile criminal histories hampers an individual's ability to be successful and productive member of society.These criminal histories are a hindrance to employment, education, housing and credit.It is often difficult for indigent children, especially those children in foster care, to overcome the hurdles required to obtain an expungement. Children are unable to pay the fee required to obtain a criminal history from SBI.Children also do not have the knowledge or support to obtain documentation and file the petition as required by the current statute First, this act streamlines the process of mandatory expungemenst by easing some of the cumbersome requirements currently in place.This change will save the Court time and resources and is in the interest of judicial economy. This change is also in the best interests of the child who may lack the resources, knowledge, and family support to file an expungement petition and obtain a criminal history on their own. Second, the act modifies the discretionary expungement provisions to allow more children the ability to petition the Court for an expungement.These changes allow the Court to consider an expungement where the child has demonstrated rehabilitation despite multiple youthful indiscretions.These provisions will enable a greater number of deserving youth the ability to move beyond their past and recognizes that most youth mature out of offending behavior. |
Author: Senator Blevins
