A felony conviction can be reduced to a misdemeanor, or a misdemeanor can be reduced to a lower degree by filing a motion under Utah Code section 76-3-402. This process is commonly referred to as a “402 reduction.” It can be useful in clearing felony convictions from a criminal history record, in shortening the waiting period required for expungement, and in restoring expungement eligibility.
How and when this tool may be used in cleaning up a person’s criminal record will depend on several different factors. This page presents only general information on the requirements for obtaining a 402 reduction. For advice specific to your circumstances, please contact us directly to talk with one of our attorneys.
Probation OR Parole – 2021 Amendments
Utah Code section 76-3-402(3) governs requests for a reduction following the completion of probation or parole. NOTE: This subsection was amended by the legislature in 2021 to expand eligibility to include individuals who successfully complete either probation OR parole.
Prior to 2021, eligibility for a 402 reduction was restricted to individuals who were placed on probation and subsequently completed probation successfully (without being sent to prison). This change in the law tacitly recognizes that some people may not “get it right” the first time, but that some reward may be appropriate when a person does eventually succeed.
Requirements for a Post-Sentencing 402 Reduction
Subsection (3) provides several requirements that must be met in order to obtain a reduction. The first four requirements are generally fairly straightforward. The fifth requirement can be both more complex and more ambiguous. The requirements are discussed below.
Successful “Discharge” from Probation OR Parole
In this context, “discharge” means completion or termination of either probation or parole. Section 76-3-402(3)(a) requires that the person first be successfully discharged from probation or parole.
An “unsuccessful” termination occurs when a person violates either probation or parole and is then ordered to serve out a remaining jail or prison term. A judge may also terminate probation “unsuccessfully” based on a violation of probation conditions, but without imposing additional jail time.
In some cases, a court may revoke and terminate probation unsuccessfully based on a finding that the terms and conditions of probation have been violated. In a felony case, the court then has the option of imposing the prison term that had originally been suspended on condition of successful completion of probation. The court may also revoke and terminate probation unsuccessfully and impose a shorter jail term as punishment instead of the prison term.
If the court imposes the prison term, and if the person eventually completes parole successfully, they may still be able to obtain a 402 reduction. If the court revokes probation in a felony case and imposes only a shorter jail term as punishment, the person will not have an opportunity at “parole” and will therefore not be eligible for reduction under section 76-3-402.
“Upon Motion and Notice to Either Party”
Subsection (3)(a)(ii) requires that a defendant’s request for a post-conviction reduction must be made by motion, and that notice of such motion must be provided to the prosecution as otherwise provided for generally by the Utah Rules of Criminal Procedure.
Notice to Victims
Subsection (3)(a)(iii) requires a prosecutor to make a “reasonable effort” to provide notice to any victims in the case. Depending on the period of time that has passed since the original conviction, prosecutors are not always able to locate a victim. Failure to notify a victim does not invalidate any 402 reduction motion or order if the prosecutor has made the required “reasonable effort.” If there is no named victim in the case, the defendant’s notice to the prosecutor is sufficient.
Court Hearing on the Motion
Subsection (3)(a)(iv) provides that either party (defense or prosecution) may request a hearing on the motion. If such a hearing is requested, the court is required to grant the hearing. After both parties are given the opportunity to be heard on the matter, the court may then decide the motion on its merits.
If neither party requests a hearing, the court may decide the motion based on the written filings that have been submitted by both parties. When a prosecutor has stipulated to (agreed with) the defendant’s motion to reduce, it is often faster to file a request to submit the motion directly to the judge for decision rather than requesting a hearing. However, if a prosecutor has filed an objection to the reduction, requesting a formal hearing on the motion is usually recommended.
“In the Interest of Justice”
If all of the technical requirements are met, then the court must determine whether the requested reduction in the level of the conviction is “in the interest of justice.” The idea of “the interest of justice” is ambiguous, but it is also a broad concept that allows the court to consider a wide variety of factors.
Some prosecutors have objected to reduction motions on grounds that the requested reduction is “in the defendant’s interest.” Such an objection, by itself, carries little merit. The concept of “justice” includes what is right or fair for society in general, but also includes what is fair and right for the specific individuals involved in a specific criminal case.
If the court determines that a defendant’s interests are benefitted by the requested reduction, and that the interests of the community as a whole are not harmed, such findings can be sufficient to show that the reduction in the level of conviction is “in the interests of justice.”
Burden of Proof on a 402 Reduction Motion
Subsections (3)(a)(ii)-(iv) are essentially procedural in nature. Subsections (i) and (v) involve mixed questions of law and fact that must be decided by the court.
The burden of proof with regard to subsections (i) and (v) rests with the defendant. (Technically, the statute places the burden of proof onburden is placed on the “moving party.” However, the “moving party” in a 402 reduction motion is almost always the defendant.)
The defendant, in either the original written motion or at a hearing before the court, has the burden of presenting evidence that demonstrates: 1) successful completion of probation; and 2) that the requested reduction is in the interests of justice.
Ineligible Offenses and Grounds for Disqualification
Section 76-3-402 restricts a court’s ability to grant any kind of reduction if the conviction requires the defendant to register under Utah’s Sex and Kidnap Offender Registry or Child Abuse Offender Registry. Eligibility for a reduction can be restored once such registration requirements have expired. (An offense requiring lifetime registration is not eligible for a 402 reduction.)
The statute provides two other restrictions on a court’s authority to grant a reduction: 1) when there is an unpaid balance remaining on court-ordered restitution in the case; and 2) if “the reduction is specifically precluded by law.”
Level of Offense Reduced by Legislature (e.g. POCS)
The Utah State Legislature, from time to time, has adjusted the level and severity of various offenses. Often, the adjustment raises the level of the offense and creates increased penalties. However, there are statutory amendments that have been passed that have reduced the level of certain offenses. Drug possession cases are a prominent example of such a reduction.
For years, simple possession of a Schedule 1 or Schedule 2 controlled substance was classified a third-degree felony. Under more recent statutory amendments, most possession cases that do not involve distribution, manufacture, or other enhancements begin at the class A misdemeanor level.
This change in the drug possession laws was not made retroactive. But the Legislature shortly thereafter amended section 76-3-402 to explicitly provide that a court “shall consider as a factor in favor of granting the reduction” any subsequent legislative action that reduced the penalty and classification of the original offense.
One Step or Two Steps
Utah Code 76-3-402(4) provides that the level of a conviction may be reduced by a maximum of two steps. For a two-step reduction, the statute requires the prosecutor be in agreement with the requested reduction and that such agreement be made specifically in writing or on the court record.
This, in effect, gives a prosecutor a quasi-veto power for a two-step reduction request. A one-step reduction can still be granted by the court over the objection of a prosecutor if the court determines that all other requirements have been met.
Other Options
A 402 reduction is not the only option to consider when trying to clean up an old criminal history record. In some situations, a 402 reduction can be used to restore expungement eligibility. Sometimes, a person can be eligible for expungement even though they are not eligible for the 402 reduction. Court-ordered expungements and/or a pardon from Utah’s Board of Pardons and Parole should also be considered when determining the best strategy for clearing your record.
Finding an Attorney for 402 Reductions in Utah
For assistance in clearing your criminal record or to learn more about eligibility for 402 reductions, pardons, and expungements in Utah, contact us today.