Utah law provides a method whereby a felony conviction may be reduced to a misdemeanor or a misdemeanor may be further reduced to restore expungement eligibility. This is commonly referred to as a “402” reduction based on the section of the Utah Code that establishes the requirements and procedure for the reduction – 76-3-402.
In order to take advantage of this process, a person must first have completed probation successfully and must also file a formal motion with the court and demonstrate that the requested reduction is in the interest of justice. Having the assistance of an experienced criminal defense attorney can significantly improve your chances of success on the reduction motion.
Contact us today to see how we can help you.
2021 Legislative Update – Parole Eligibility
NOTE: The Utah State Legislature in 2021 has amended section 76-3-402 to expand eligibility for a 402 reduction to include individuals who have completed either probation OR parole successfully. This significantly increases the number of people who may be eligible by now allowing a court to reduce the level of a conviction even when the defendant was ultimately required to serve a prison term, so long as the person successfully completed parole.
Statutory Requirements for 402 Reductions
A 402 reduction motion (more formally known as a motion to reduce level of offense filed under Utah Code 76-3-402) must demonstrate that the requested reduction is “in the interest of justice.” This statutory standard is somewhat vague, but can be thought of generally as requiring proof that the defendant deserves a break or that the defendant’s conduct since completing probation has demonstrated that further mercy from the court is warranted.
Before reaching the issue of “the interest of justice,” the defendant must first establish that statutory eligibility has been met. The chief element for eligibility is successful completion of probation. Previous versions of section 402 required that probation be completed “without violation.” Changes by the legislature to require only “successful completion” made eligibility more broadly available to individuals who may have had some problems initially on probation but ultimately got on track and completed their probation requirements.
Utah Code 76-3-402 also contains exclusionary elements that will limit eligibility for a reduction. If the conviction is for an offense that requires registry either on Utah’s sex and kidnap offender registry or Utah’s child abuse offender registry, a reduction cannot be granted by the court until after any required registration period has been completed. (If the registration requirement is for life, reduction under section 402 is not an option.)
Payment of restitution can also prevent a reduction. A court does not have authority to reduce the level of a conviction if the defendant has not fully paid court-ordered restitution in the case. This can be remedied by paying off the restitution amount. This will often involve the Utah Office of State Debt Collections.
Stipulation by the Prosecutor
Having the 402 motion to reduce granted by the court generally will be easier if the prosecutor agrees with or stipulates to the motion. In most cases, where only a one-step reduction is requested, the court can grant the reduction over the prosecutor’s objection if the defense case is sufficiently persuasive. However, under Utah law the prosecutor must consent to the request for a two-step reduction.
Court Hearing on the Motion
A 402 motion to reduce the level of conviction is not an automatic process. Even if a prosecutor has stipulated to the motion, even if the prosecutor has previously made agreement with the reduction a part of the original plea negotiations, only the judge can grant the motion and enter the reduction. If a prosecutor objects to the reduction or if the court has concerns about the requested reduction, the defendant can request a hearing in court on the matter.
Benefits of a 402 Reduction
The most common reason for filing a 402 reduction is to have a felony conviction reduced to the misdemeanor level. In cases involving third-degree felony convictions, a one-step reduction will change the felony to a misdemeanor conviction. In cases involving a second-degree felony conviction, a two-step reduction will require the prosecutor’s stipulation in order to give the court the authority to make the reduction necessary to reach the misdemeanor level.
Another common purpose for obtaining a 402 reduction involves the expungement process. Under Utah law, eligibility for expungement is based in part on the number of convictions on a person’s record, the level of those convictions, and the age of the convictions. By reducing the level of a conviction, a person may be able to restore eligibility for expungement or may be able to reduce the waiting period required for eligibility.
A 402 reduction can also provide benefits outside of the legal system. A felony conviction can severely restrict employment options, housing availability, and loan eligibility. Felony convictions can also limit a person’s opportunities to do volunteer work, participate in coaching their own children’s youth sports teams, or help in their own children’s school classrooms.
402 Reduction Attorneys in Utah
If you have completed probation successfully in Utah and have lived your life in a way that demonstrates that you deserve a further break, consider seeking a 402 reduction from the court. As an experienced criminal defense attorney in Utah, Stephen Howard has successfully assisted clients in obtaining reductions for a wide variety of misdemeanor and felony convictions.
Contact us today to discuss eligibility for a 402 reduction or other options for clearing your criminal record. See what the right attorney can do for you.