*** Please Note: Since this post was originally published in 2017, the eligibility requirements for a 402 reduction have been amended by the legislature, opening the door for many individuals previously not eligible for a reduction. Contact us to see how these newer laws may affect your eligibility. ***
Commonly referred to as a “402” reduction, Ogden courts have the authority to reduce the level of a prior conviction when the defendant has successfully completed probation and when the court is convinced that the reduction is in the interest of justice.
If you have a felony or misdemeanor conviction that is preventing you from being eligible for expungement, is hurting your ability to get a job, or otherwise causing problems in your life, a 402 reduction may be part of the solution. Call us to see how we can help you.
Benefits of a 402 Reduction in Ogden
Reducing a Felony to a Misdemeanor: One of the most common reasons for filing for a 402 reduction in Ogden is to have a felony conviction reduced to the misdemeanor level. If you have a felony conviction in Utah, you are probably painfully aware of the negative effects it can have on your life. A felony conviction makes it harder to get a job, find a place to live, get a loan, and much more. But under Utah Code 76-3-402, you may be able to have a third-degree or even a second-degree felony reduced to the misdemeanor level.
Restoring Your Expungement Eligibility: When filing for expungement in Ogden (and anywhere in Utah), your initial eligibility for expungement is generally determined by the number of convictions on a person’s criminal record, the level of those convictions, and the length of time that has passed since the cases were fully closed. By filing a 402 reduction motion to reduce the level of prior convictions, you may be able to restore your eligibility for expungement. The reductions can also shorten the waiting period for eligibility. In other cases, the reduction itself can turn a non-expungeable felony charge (such as a violent felony) into an expungeable misdemeanor. A reduction of a misdemeanor to the infraction level can also reduce the number of convictions that are considered in determining eligibility.
The 402 Reduction Process
Even if an Ogden prosecutor has previously agreed to a reduction as a part of a negotiated plea agreement, a 402 reduction is not automatically entered by the court. Although the prosecutor has agreed, a formal motion must be filed and the court must be persuaded that the reduction is “in the interest of justice.” Following is a brief outline of the process of obtaining a 402 reduction.
Complete Probation Successfully: As required by Utah law, a defendant must successfully complete probation as a preliminary qualification for a 402 reduction. Under former versions of Utah Code 76-3-402, a defendant was required to be discharged from probation “without violating” the terms of probation. A 2007 change to this statute made by the state legislature revised the eligibility conditions to require instead only that probation be completed “successfully.”
This change is significant. Under the earlier version of the statute, 402 reduction eligibility could be lost based on a single minor violation of probation early on in a case. But under the new statute, a defendant who may have had some “bumps in the road” during probation but who ultimately completed “successfully” his probation may still qualify for a reduction.
Utah courts distinguish between probation and parole. The statute specifically requires successful completion of “probation” in order to retain eligibility for the reduction. If a person is sent to prison and completes parole successfully, eligibility for the 402 reduction is lost.
Filing the Formal Motion: Simply completing probation successfully does not guarantee a reduction in the level of conviction. According to Utah law, a motion must be filed with the court in which the defendant bears the burden of proof to demonstrate it is “in the interest of justice” to grant the motion. It is not enough to merely make a request.
Holding a Hearing: In some cases, the court will require a hearing in open court where all parties are able to present arguments for or against the motion to reduce. If a prosecutor is persuaded prior to a hearing that the motion should be granted, a stipulation can be submitted to the court and the court may, in its discretion, grant the motion without a hearing.
Finding an Attorney for a 402 Reduction in Ogden
A 402 reduction can help open doors that have been closed because of a criminal record or felony conviction. We help clients reduce the level of prior convictions in Ogden and throughout Utah. Contact us today to see how we can help you.