Can a violent felony conviction be expunged in Utah?
The Utah Expungement Act prohibits a court-ordered expungement of a violent felony conviction. In some circumstances, there may be alternative strategies for clearing a violent felony from your criminal record. A 402 reduction order can sometimes be used to restore eligibility for a court-ordered expungement. When a 402 reduction is not an option, a pardon issued directly by the Board of Pardons can have essentially the same effect as an expungement.
Utah Law on Felony Expungements
For criminal cases involving a conviction, Utah Code 77-40-105 establishes the expungement eligibility requirements. An eligible felony under this law requires a minimum seven-year waiting period before a certificate of eligibility can be issued by BCI. This law also prohibits a court-ordered expungement of any violent felony conviction.
For purposes of the expungement statute, the term “violent felony” is defined by Utah Code 76-3-203.5 and covers a wide range of felony offenses including (but not limited to) convictions for arson, aggravated assault, stalking, child abuse, domestic violence, homicide, kidnapping, rape or other sex offenses, burglary, robbery, witness tampering, and various weapons offenses.
In some cases, eligibility for expungement of a violent felony can be restored through a reduction process commonly referred to as a “402” reduction. While Utah law prohibits the expungement of any violent felony conviction, a distinction is made between a conviction for a violent felony and a violent felony charge that has since been dismissed or reduced. Utah Code 76-3-402 provides a procedure whereby a person may be able to obtain a court order reducing the conviction from the felony level to the misdemeanor level.
Obtaining a 402 Reduction
The first eligibility requirement for a 402 reduction is the successful completion of probation. Previous versions of section 76-3-402 required completion of probation “without violation.” Under the current amendments to the statute, eligibility can be maintained even following a violation of the terms of probation, so long as a defendant ultimately completes probation successfully.
The second requirement for obtaining a 402 reduction is a demonstration to the court that the requested reduction is “in the interest of justice.” This standard is not clearly defined in the statute, but can generally be thought of as requiring that the court be convinced that the defendant deserves a break and that the public does not need to be protected by retaining the “convicted felon” label.
Where a one-step reduction is all that is required (i.e., a third-degree felony being reduced to a class A misdemeanor), the defendant need only convince the judge that the reduction should be granted. The court can then order the reduction even over the prosecutor’s objection. Where a two-step reduction is required to take the level of the conviction to the misdemeanor level, the prosecutor must consent to the reduction either in writing or on the record in court. Where the prosecutor has stipulated to the two-step reduction, the judge also must be convinced that the two-step reduction is justified. Where the prosecutor objects to the two-step reduction, the judge is restricted to granting only a one-step reduction.
Note that in circumstances where a person is unable to obtain a 402 reduction to the misdemeanor level (whether because probation was unsuccessful, probation was not granted, or the judge denies the motion), the pardon process may provide an alternative method of obtaining an expungement of a violent felony conviction or expungement of multiple convictions.
