If you have completed probation successfully in a Davis County criminal court case, you may be eligible to obtain a reduction in the level of the conviction. Under Utah law, if it is demonstrated that the request is in the interest of justice, a person who has completed probation successfully may have a felony conviction reduced to a misdemeanor, or may have the level of a misdemeanor conviction reduced.
How can a Utah 402 reduction help me?
Felony Reductions: By filing a 402 reduction motion, a Utah felony conviction can be reduced to the misdemeanor level. Once reduced, the conviction will still appear on criminal history reports and background checks. However, the conviction should appear on the criminal record as a misdemeanor rather than as a felony. The 402 reduction can also allow a person to no longer be classified as a “convicted felon.”
Expungement Eligibility: Utah law provides that the determination of expungement eligibility is based on both the number and level of convictions contained on a person’s criminal record. Often, a person who has lost eligibility can have that eligibility restored by having the level of prior convictions reduced.
In some cases, prior convictions may be reduced to the infraction level. While there are limits on the number of felony or misdemeanor convictions that may be eligible for expungement, Utah law governing expungement eligibility provides for expungement of an unlimited number of infractions.
A single violent felony is not considered to be eligible for expungement. However, a 402 reduction that reduces the felony to the misdemeanor level can restore expungement eligibility.
Expediting Expungement Eligibility: When a person is eligible for expungement of a conviction, Utah law still requires a substantial waiting period before the expungement process can be started. The length of the waiting period is based largely on the level of the offense. For example, a third-degree felony requires a seven-year waiting period. But using a 402 reduction to reduce the level of the conviction to the class A misdemeanor reduces the waiting period by two years.
How do I qualify for a 402 reduction in Davis County?
The statute governing 402 reduction motions requires first that the defendant complete probation successfully. Former versions of Utah Code 76-3-402 required that probation be completed without any violations. But the current statute is more lenient, taking into account the fact that some probationers may struggle at first before ultimately succeeding. The current statute reflects an intent to reward probationers who complete the rehabilitation process, even though they may have a rocky start.
In addition to successful completion of probation, a defendant must also demonstrate to the court that the reduction is in the interest of justice. This is a somewhat ambiguous standard. But in general terms, a court must be persuaded that the defendant deserves the benefit of the reduction, and that public safety will not somehow be compromised as a result of reducing the level of the conviction.
All fines and financial obligations on the case must be paid in full before the court can grant a 402 reduction.
It is important to understand that Utah law makes a distinction between probation and parole in the context of a 402 reduction. A person who has been sent to prison on a felony conviction (as opposed to jail time as a condition of probation) cannot be given a 402 reduction. In many cases, such felonies may also be ineligible for expungement. But the pardon process may still be a viable option for clearing such a criminal record. A pardon must be obtained from the Utah Board of Pardons and Parole rather than through the courts.
When can I apply for a 402 reduction in Davis County?
Unlike expungements, there is no waiting period required before pursuing a 402 reduction. Immediately upon successful completion of probation, the process of filing for a 402 reduction can be started. In some cases, there may be a strategic benefit to waiting. But there is no legally required waiting period.
Just as there is no waiting period, there also is no deadline for filing a request for a 402 reduction. Some people have spent years with felony convictions on their record that could have been reduced. A person with old criminal charges that have never been reduced or expunged may still be able to obtain substantial benefits by getting the charges reduced or expunged.
One-Step and Two-Step Reductions
Utah Code section 76-3-402 provides that a court may reduce a conviction level by as much as two steps. A two-step reduction can result in a second degree felony being reduced to a misdemeanor, or a class B misdemeanor being reduced to an infraction.
However, to obtain a two-step reduction, the prosecutor’s consent must be obtained. In most legal matters, the judge has final say. But for a section 402 motion to reduce, the judge is only permitted to grant a one-step reduction without the prosecutor’s consent.