Delaware’s cannabis laws are evolving, much like the changing tides. If you have a cannabis record, clearing it is crucial.
Think of expungement as pressing a reset button for your past cannabis convictions. This guide is meant to be your roadmap to navigating the state’s expungement process.
With our help, you’ll understand the process of navigating Delaware’s expungement laws and reclaiming your future.
Understanding Expungement in Delaware
Expungement is the legal process of erasing or removing past convictions from your record, making them invisible in most background checks. In Delaware, this can involve clearing cannabis-related arrests and convictions in the realm of criminal justice.
Successful expungement results in the record being sealed, making it inaccessible to most employers, landlords, and background check agencies.
Legal Definition and Applicability
Expungement is the legal process that allows an individual to have their criminal record cleared.
Expunging a cannabis conviction can potentially improve job and housing opportunities significantly.
In Delaware, this process applies to certain cannabis-related arrests and convictions, including possession of a personal use quantity of marijuana. Successful expungement means the record will be sealed and no longer visible in most background checks, but it is not a complete erasure.
It’s important to note that expungement is different from simple record sealing, which might restrict access to your record without entirely erasing it. The main goal is to give individuals a clean slate and a fresh start by removing the stigma of a past conviction.
Differences Between Expungement and Record Sealing
Expungement and record sealing both aim to minimize the negative impact of a criminal record.
Expungement typically results in the complete removal of the record from public access, providing second chances as if the offense never occurred.
In Delaware, once a record is expunged, it won’t show up in most background checks, providing a fresh start.
Record sealing, however, does not erase the record. It limits who can see it, often restricting access to certain individuals or entities.
Both processes can improve life opportunities, but expungement offers more thorough relief.
Benefits of Clearing Your Record
Clearing your record of cannabis offenses opens doors to better employment opportunities by removing the stigma associated with a criminal past. This can lead to higher wages, better positions, and overall job security.
Additionally, it enhances your chances of securing housing and educational opportunities, as landlords and schools often conduct background checks. Expungement helps you move forward without the lingering shadow of old convictions.
Improved Employment Prospects
Clearing your cannabis record boosts your chances of securing better jobs.
- No stigma during background checks
- Access to higher-paying positions
- Enhanced job security
- Eligibility for sensitive roles
Expungement offers a fresh slate, enabling new career paths.
Employers are likely to view you more favorably, increasing hiring prospects.
Enhanced Housing Opportunities
Clearing your cannabis record can significantly improve your housing prospects by eliminating past offenses from background checks.
- Better chances of securing rental agreements
- No stigma for landlords conducting checks
- More options for housing choices
With an expunged record, you’ll avoid the discrimination many face with a criminal background.
This gives you peace of mind, knowing your past won’t affect current housing opportunities.
Steps to Expunge Cannabis Records
The first step to expunge cannabis records in Delaware involves gathering essential documentation, such as court records, police reports, and proof of completed sentences or probation, especially under the new cannabis reform laws. This forms the foundation of your application.
Next, determine your eligibility by reviewing Delaware’s expungement legislation, including directives from the general assembly and actions taken by lawmakers, and assessing your specific case. Ensure all required documents are in order before filing your petition.
Eligibility for Cannabis Expungement in Delaware: A Clear Path Forward
Delaware recognizes the potential burdens of past cannabis offenses and offers multiple avenues for clearing your record. Here’s a breakdown of eligibility for cannabis expungement in the state:
Automatic Expungement:
Delaware provides automatic expungement for certain offenses, meaning you don’t need to file a petition for the record to be sealed. These offenses include:
- Possession of a Personal Use Quantity of Marijuana (Title 16, Section 4764): As you mentioned, Delaware automatically expunges records for possessing less than one ounce (28.35 grams) of marijuana. This is a significant benefit for individuals with past charges for small amounts.
- Possession of Drug Paraphernalia (Title 16, Section 4771): Paraphernalia associated with personal use quantities of marijuana likely falls under automatic expungement as well. However, it’s always best to consult an attorney if the paraphernalia was linked to larger quantities of drugs.
- Underage Possession or Consumption of Alcohol: Delaware offers automatic expungement for underage alcohol offenses, providing a fresh start for those who faced consequences as minors.
- Dismissed Charges (“Nolle Prosequi“): If charges were dismissed by the prosecutor (“nolle prosequi”), they are automatically expunged, removing the arrest from your record.
Remember: Automatic expungement doesn’t require any action on your part. However, it’s crucial to ensure these offenses haven’t been combined with more serious charges that could alter your eligibility.
Mandatory Expungement:
Delaware also provides mandatory expungement for certain qualifying individuals after a waiting period:
- Three Years with No Prior or Subsequent Convictions: If you were convicted of one or more minor violations related to the same case (such as possession and paraphernalia), and you have no prior or subsequent convictions, you may be eligible for mandatory expungement after three years. This waiting period starts after completing any sentence or probation.
Discretionary Expungement:
For offenses not covered by automatic or mandatory expungement, Delaware courts have the discretion to grant expungement on a case-by-case basis, also considering the implications of pardons law. Here are some factors a judge might consider:
- Nature of the Offense: The severity of the offense (possession vs. distribution) plays a role.
- Time Elapsed Since the Offense: The longer it’s been since the offense, the more likely expungement might be granted.
- Completion of Sentence or Probation: Demonstrating responsible behavior by completing any sentence or probation strengthens your case.
- Criminal History: A clean record outside of the cannabis offense improves your chances.
Consulting an Attorney:
While this information provides a general overview, it’s always recommended to consult with an attorney specializing in cannabis expungement in Delaware. They can assess your specific situation, determine your eligibility for different forms of expungement, and guide you through the process effectively.
Filing a Petition and Court Hearing
To file a petition for expungement, you need specific forms and documentation.
- Gather Documents: Collect court records, police reports, and proof of completing sentences or probation.
- Check Eligibility: Review Delaware’s expungement laws to determine if you qualify.
- Complete Forms: Fill out the required expungement petition forms, available on Delaware’s court website.
- Submit Petition: File your completed forms and necessary documents with the court.
During the court hearing, the judge reviews your petition and supporting evidence.
Be prepared to answer questions and present all required documentation to support your expungement request.
Receiving Court Order and Sealing
Once the judge grants your expungement petition, you’ll receive a court order for expungement. This document is crucial as it officially directs the removal of your cannabis record.
The court order ensures that your criminal record related to the expunged offense is no longer publicly accessible.
Law enforcement agencies, background check companies, and state databases are notified to seal your record.
Sealing your record means it will be removed from public databases, protecting your privacy.
It’s important to verify with the court that all relevant agencies have been notified and have sealed your record as mandated.
Finally, keep a copy of the court order for your records. While expunged, some jobs might require proof of the expungement process.
Other Options for Record Clearing
Besides expungement, explore options like record sealing and gubernatorial pardons. Record sealing keeps details hidden from the public, while pardons, granted by the governor, offer forgiveness but not expungement.
Both methods can improve your chances in job applications and other areas where background checks are common. Each has unique requirements and benefits that can help clear your past.
Alternative Solutions in Delaware
In Delaware, there are alternatives to expungement for clearing your cannabis record.
One option is record sealing, which keeps the details of your record hidden from the public.
Unlike expungement, record sealing doesn’t erase your record but makes it inaccessible to most background checks.
Another option is seeking a gubernatorial pardon, which requires the governor’s approval and offers forgiveness for your offense.
These methods help improve job prospects and other areas where background checks are frequent.
Pardons
A gubernatorial pardon is a formal forgiveness granted by the governor of Delaware.
While a pardon doesn’t erase a cannabis offense from your record, it removes the legal penalties associated with it. This means the conviction remains visible but is marked as pardoned, which can positively affect job prospects.
Applying for a pardon involves submitting a detailed petition and going through a review process by the Board of Pardons. It’s crucial to include strong supporting documentation and personal testimonials.
Overall, obtaining a pardon can be beneficial for those seeking forgiveness for their past offenses. Keep in mind that a pardon can still leave the record accessible in some background checks, especially at the federal level.
About the Author
Tom Howard, a Cannabis Industry Lawyer and Consultant has practiced commercial law since 2008 when he graduated from law school and got his Series 7 & 66 Securities licenses. He pivoted to practicing litigation for financial institutions before helping cannabis teams form, capitalize, and, get licensed. He has concentrated on the cannabis business since Illinois legalized it in 2019. He won licenses for clients in Illinois, Connecticut, New Jersey, New Mexico, Massachusetts, Missouri and has gotten into lotteries in Ohio, Maryland and Maine. He became a Certified Ganjier in 2021. He chairs the ISBA’s section council for Cannabis Law in 2023.
