Reducing Prior Felony Drug Convictions
If I was previously
convicted of a felony drug possession charge, will my charge be
automatically reduced to a misdemeanor since the legislature changed
the level of most drug charges in 2015?
Significant changes were made to a variety of Utah's criminal laws
during the 2015 legislative session. One of the most dramatic changes
was the reduction of many felony drug possession charges to the
misdemeanor level.
If you are facing prosecution for a
drug
charge or if you have been previously convicted and are now seeking to
reduce
the level of your conviction or
clear
your record,
contact
us today to see how an experienced
criminal
defense attorney can help
you.
IMPORTANT UPDATE
- In 2017, the legislature amended Utah Code 76-3-402 to include the
following language: "the court shall consider as a factor in favor of
granting the reduction that, subsequent to the defendant's conviction,
the level of the offense has been reduced by law." This language
further supports the argument that a felony conviction for drug
possession (or other offenses which have been reduced by the
legislature) should be reduced to the misdemeanor level. If you have a
criminal record that is holding you back in life,
contact us today to see how
we can help you.
Legislative Reduction in Utah Drug Offense Levels
Under prior law, most possession charges for drugs such as
heroin,
methamphetamine,
cocaine,
and many
prescription
drugs began at the
third-degree
felony
level. With enhancements, the level of the offense
could be even higher. But under the new law, most drug possession
charges start at the
misdemeanor
level
Under the old laws, many thousands of people have been convicted at the
felony level for conduct that would today be considered only a
misdemeanor. This change in the law raises the question of whether a
person who was previously convicted of a felony for simple drug
possession should still be required to bear the burdens associated with
being a "convicted felon."
Retroactive Application - Pending Cases
The language of the legislature's amendments to Utah drug law does not
contain any provisions for retroactivity (meaning the amended statute
applies only to crimes committed after the new law took effect).
However, Utah courts have ruled that a person who has been convicted
but not
sentenced
for a crime is entitled to be sentenced at the
reduced level of the amended criminal law.
The courts have reasoned that there is no rational basis for punishing
conduct at the higher felony level when the legislature has determined
that the conduct is now deserving only of misdemeanor-level punishment.
Although the case law is not fully developed on sentencing for
probation
violations, the same reasoning could be applied to an order
to show cause hearing for a probation violation where the original
conviction was at the higher level.
Retroactive Application - Closed Cases
While the courts have ruled that a pending charge can be reduced to
conform with a legislative reduction in the severity of an offense, the
courts will not apply the retroactive reduction to cases that are
already closed. People who have already completed probation or finished
a jail or prison sentence are not entitled to any automatic reduction
in the level of their conviction. But there are other alternative
methods to reducing a conviction or clearing a record.
402 Reductions - Felony or Misdemeanor
Under
Utah Code 76-3-402, a person who has been previously convicted of a
crime may ask the court to reduce the level of the conviction by one or
two steps. Commonly referred to as a "402 reduction" motion, this
process allow a person to have a felony conviction reduced to the
misdemeanor level or may be used to speed up eligibility for
expungement.
There are two key qualifications for a
402
reduction. The first requirement is successful completion of
probation.
(Note that the law makes a distinction between probation and parole - a
person who has been to prison and successfully completes parole will
not qualify for a 402 reduction.) The second requirement is a
demonstration to the court that the requested reduction is "in the
interest of justice."
Successful completion of probation is
not, by itself, sufficient to merit an automatic reduction in the level
of the offense. While the concept of "the interest of justice" is
somewhat vague, the court generally must be convinced that the person
requesting the reduction deserves the reduction and that society at
large does not need to be protected by keeping the conviction at its
original level.
If a prosecutor will stipulate (agree) to
the 402 reduction, then many judges will grant the motion without a
hearing. But if the prosecutor objects or refuses to stipulate, the
defendant is entitled to request a hearing where information and
argument can be presented to the court.
Expungement
For a person who has a felony conviction for drug possession who is not
eligible for a 402 reduction,
expungement
can provide an alternate
method of clearing the felony conviction from their record.
Expungement
of a criminal case involves the sealing of court records, police
reports, prosecutor files, and BCI criminal history records.
Regardless
of whether a person successfully completed probation, served jail time,
or went to prison, a person who meets the statutory qualifications for
a certificate of eligibility may petition the court for an order
expunging or sealing the records of the case. Once expunged, a person
is allowed to answer most questions regarding the case as though the
incident had never happened.
The requirements for expungement eligibility are fixed by statute. BCI
is required to perform a background search to determine how many
convictions an applicant has (in Utah as well as in other states or in
the federal system) and what level of offense those convictions
involve. The standard for eligibility is based on both the number and
level of prior convictions on the person's record. Too many
convictions, and BCI cannot issue a certificate of eligibility. Without
a certificate of eligibility, a person cannot even petition the court
for expungement.
Pardon
A
person who does not qualify for either a 402 reduction or an
expungement may still have another option for clearing their record.
The Board of Pardons and Parole has authority to grant a pardon (which
has essentially the same effect as an expungement), but is not bound by
the same statutory eligibility requirements that govern expungement
eligibility.
The pardon process begins with the preparation
of an initial application. The initial application requires collecting
police reports, court records, a BCI denial of a certificate of
eligibility, and an official BCI criminal history report. A successful
application will also contain enough information about the defendant
and his/her circumstances and life history to convince the Board to
grant a hearing.
The Board is not required to hold a hearing
on every pardon application. The initial application will first be
reviewed to determine whether a hearing will be held. If the
application is not sufficiently persuasive, the Board can simply deny
the application without any hearing. But if the Board is willing to
consider the application further, then a hearing will be scheduled
where the defendant will have an opportunity to personally address the
Board.
The Board of Pardons has wide discretion to grant a
pardon in cases where it determines that a pardon is appropriate. The
Board can consider a wide variety of factors in making its
determination, including not only the defendant's criminal record and
probation/parole history, but also their personal circumstances,
involvement in community activities, work history, family situation,
and other facts determined to be relevant.
Summary
The
2015 amendments to the Utah criminal code reduced the level of many
drug offenses. But thousands of people still have felony convictions on
their records from cases that occurred prior to the amendments.
Although there is no automatic reduction for convictions that have
already entered, a person may be able to reduce the level of their
conviction through a 402 reduction motion or have their record cleared
through the expungement or pardon process.
Finding a Criminal Attorney to Clear Your Record

If
you have a felony or misdemeanor criminal conviction that you would
like to have reduced, expunged, or pardoned, an
experienced criminal
attorney can provide vital counsel and assistance in preparing and
presenting your case to the courts or to the Board of Pardons.
Contact us today to see how
we can help you. We can usually tell you over the phone whether you are
eligible.