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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