402 Reductions in Utah Criminal Cases

The term "402 reduction" is commonly used in Utah criminal cases to refer to the process under Utah Code 76-3-402 that allows a person who has successfully completed probation to file a motion with the court seeking to have the level of the original conviction reduced by one or two levels. Such requests are not automatically granted, and the defendant bears the burden of proof to show the court that the requested reduction is in the interest of justice.

This page presents only general information regarding the 402 reduction process in Utah. The specific facts of your original case and the current circumstances of your life can significantly affect how you may want to approach the 402 reduction process. Having the assistance of an experienced criminal defense attorney can give you the best chance of success. Contact us today to see how the right attorney can help you.

Reasons to File a 402 Reduction Motion

There are several reasons why a person may choose to file a motion seeking a 402 reduction. The most common reasons include reducing a felony conviction to the misdemeanor level, restoring expungement eligibility, and shortening the waiting period required for expungement eligibility.

By reducing the level of the conviction from the felony level to the misdemeanor level, a person can regain the legal rights (such as gun rights)previously lost due to status as a "convicted felon." This reduction can also improve the person's chances of getting a job, make it easier to rent an apartment or get a loan, and many other impairments imposed outside of the formal criminal justice system.

Other common reasons for filing a formal motion for a 402 reduction relate to the expungement process. Expungement eligibility requirements that can be affected by a 402 reduction relate to both the number and kind of offense that can be expunged, as well as the waiting period required before expungement can be sought..

Utah's expungement eligibility statutes establish a class of felony convictions that are not eligible for expungement through the courts. This group of "violent felony" convictions simply cannot be expunged by the courts so long as the convictions remain at the felony level. If the level of conviction is reduced from a felony to a misdemeanor, the conviction ceases to involve a "violent felony" but instead involves only a "violent" misdemeanor. Most such misdemeanors will be eligible for expungement.

Utah's expungement statutes generally base eligibility on both the number and level of convictions. For example, a person convicted of a non-violent felony in two separate cases will not initially be eligible for expungement. If those two convictions are reduced to the misdemeanor level through the 402 reduction process, then eligibility can be restored. Similarly, a person who has five class C misdemeanor convictions may not be eligible for expungement but can have eligibility restored if some of those convictions are reduced to the infraction level..

A reduction in the level of a conviction can also shorten the waiting period required to achieve expungement eligibility. For example, a single felony conviction requires a seven-year waiting period following the completion of probation, parole, or incarceration. If the level of that conviction is reduced to a class A misdemeanor, the waiting period is shortened by two years.. If the conviction can be reduced by two steps to the class B level, the waiting period is shortened by a total of three years.

Eligibility for a 402 Reduction

Probation - The first requirement for obtaining a 402 reduction is that the defendant complete probation successfully. Completion of parole does not count for purposes of 402 reduction eligibility.. A person may have violations while on probation, but must ultimately complete probation successfully. If a judge revokes probation and sends a person to prison, probation will not be considered to be successful. A judge may also revoke probation and impose jail time to close the case, or simply close the case as "unsuccessful." Either of these situations will not be considered to be a successfully completion of probation for purposes of seeking a 402 reduction.

Restitution - Utah Code 76-3-402 also requires that a person have paid court-ordered restitution in full before the court can consider a 402 reduction request. Ordinarily, restitution must be paid during the period of probation, but in some circumstances restitution may be paid at a later date if the court had determined previously that probation was otherwise completed successfully. It is best, however, to pay restitution during the period ordered by the court.

Registration - Although rare, some individuals with sex-related convictions may be eligible for a 402 reduction after they have successfully completed probation. Not all sex-related crimes require registration on the sex offender registry, but if the conviction for which the reduction is sought requires a period of registration then that registration period must have expired before the court can grant a 402 reduction. Because the registration period must first expire, a conviction that requires lifetime registration will not be eligible for a 402 reduction.

Interest of Justice

If basic eligibility requirements (described above) have been met, then a defendant requesting a 402 reduction is required to demonstrate to the court that the requested reduction is in the "interest of justice." The burden of proof is on the defendant for purposes of a 402 reduction motion. Simply filing a motion stating that probation was completed successfully may be viewed by the court as being as inadequate.

An ideal 402 reduction motion will be sufficiently persuasive that, even without holding a formal court hearing, both the prosecutor and judge recognize that the interests of justice will be served by granting the motion. A written memorandum supplemented by character reference letters and other supporting evidence or information can play a significant role in the persuasive process. Even if a formal hearing is required by the court, setting a solid foundation for the motion prior to the hearing is important.

Finding an Attorney for 402 Reductions

Utah criminal defense attorney Stephen Howard has assisted clients in obtaining expungements, pardons, and 402 reductions in a wide variety of cases throughout the state. If you have a criminal record, you may be eligible to begin clearing that record today. Unlike an expungement or pardon, there is generally no required waiting period after probation is completed.. Start the process of clearing your record today. Contact us to see how the right attorney can help you.

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