Reducing the Level of a Prior Conviction
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.
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Statutory Requirements
A 402 reduction motion (more formally known as a motion to reduce level of offense filed under Utah Code 76-3-402) must provide the court with information demonstrating that the requested reduction is “in the interest of justice.” This statutory standard is a little vague, but means generally that there must evidence showing that the defendant deserves a break or that the defendant’s conduct since completing probation shows that further mercy from the court is warranted.
The best attorneys understand that the effects of a criminal charge extend beyond just the courtroom and case.
Eligibility requirements have been modified by the legislature over the years, witha general trend of increasing the number of people who are eligible. Previous versions of section 402 required that probation be completed “without violation.” Changes made by the legislature required only “successful” completion – meaning that a person could be eligible for a reduction even if they had some problems initially on probation but ultimately got on track and completed probation requirements successfully.
More recent changes to the statute have expanded eligibility to people who have completed parole successfully, even after being sent to prison. Completion of a treatment program can open the door to potential reduction. Successful completion of probation in a different case, occurring after an unsuccessful termination, can also lead to eligibility.
Talking with an experienced 402 reduction attorney is the best way to find out if you are eligible, or if there are other options available to you.
A successful defense strategy starts with an understanding of your goals and needs.
Some Charges Not Eligible for Reduction
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.) A court is also prevented from reducing the level of a conviction if the defendant has not fully paid court-ordered restitution in the case.
Benefits of a 402 Reduction
The most common use of a 402 reduction is to have a felony conviction reduced to a misdemeanor. Under Utah Code 76-3-402, the level of a conviction may be reduced by a maximum of two steps. This means that even a second-degree felony conviction can be reduced to the misdemeanor level. In order to obtain a two-step reduction, the prosecutor’s consent (“stipulation”) is required. But a third-degree felony can be reduced to a misdemeanor even over the objection of the prosecutor.
Under Utah law, a 402 reduction may also be useful in restoring a person’s eligibility for expungement. Under Utah law, expungement eligibility is determined by a combination of time and the extent of a person’s criminal record. For example, a single felony conviction may be expunged after seven years. But if a person has two felony convictions, he/she is disqualified from obtaining an expungement. In such a case, a 402 reduction may be used to reduce one (or both) of the convictions to a misdemeanor level. For expungement purposes, the person is no longer considered to have two felony convictions, and eligibility for expungement may be restored.
The right defense attorney can make the difference you need for your case.
Contact us to learn whether you are eligible for a 402 reduction, and how our defense team can help you.