Utah 402 Reductions - Stipulated Motions

Does a prosecutor's stipulation guarantee that the judge will grant a 402 reduction motion?

A two-step reduction under Utah Code 76-3-402 requires a prosecutor's stipulation (agreement). But even with the stipulation of a prosecutor, either a one-step or a two-step reduction still requires that the judge must determine that the reduction is in the interest of justice before the 402 motion can be granted.

A 402 reduction may be useful in reducing a felony conviction to a misdemeanor, or in some situations may restore expungement eligibility. If you are seeking a 402 reduction, an experienced criminal attorney can help present your case to the court in the best light, improving your chances of success.

Based in Salt Lake City, criminal defense lawyer Stephen Howard provides legal services on cases throughout Utah. Contact us today to arrange for an initial consultation.

What is the standard for obtaining a 402 reduction in Utah?

In order to obtain a 402 reduction following the successful completion of probation, the defendant must demonstrate that it is "in the interest of justice" to grant the requested reduction. This standard is viewed by the court's as being discretionary - meaning that the judge may consider the specific facts of the case, the performance of the defendant while on probation, activities of the defendant since completing probation, and other relevant factors and then determine whether the reduction is appropriate.

A stipulation is not necessarily enough to guarantee a successful 402 reduction. In the case of State v. Quintana (48 P.3d 249), the Court of Appeals reversed the district court and remanded the case with instructions to that the prosecutor should be compelled to comply with a prior agreement to recommend (or stipulate to) the requested two-step 402 reduction. But the Court of Appeals noted that on remand and even with the prosecution's recommendation for the two-step reduction, the trial court would still have discretion to either grant or deny the 402 motion.

The appellate courts give the district court "wide latitude and discretion" in determining 402 reduction questions. See, State v. Boyd (25 P.3d 985) and State v. Holt (233 P.3d 828). If a 402 reduction motion is not successful in the district court, a defendant has the right to request a review on appeal. But it is generally an uphill fight to show an abuse of discretion by the district court on appeal. A defendant will be better off filing a strong initial motion with the court rather than planning on challenging the court's decision on appeal.

In filing a 402 reduction motion, a defendant should consider presenting information or evidence relating to positive performance while on probation, efforts toward a successful rehabilitation, counseling or treatment engaged in during probation or since the completion of probation, positive community involvements, work history and performance, volunteer work, family, etc. A cookie-cutter 402 reduction form motion cannot serve as a replacement for competent legal advice and representation. Because a successful 402 reduction motion involves a discretionary review by the judge, you must be prepared to present a persuasive case.

Benefits of a Successful 402 Reduction Motion

One of the most common reasons a person may seek a 402 reduction is to have a felony conviction reduced to the misdemeanor level. This kind of reduction can help restore rights that were lost as a result of having a felony criminal record.

A 402 reduction may also be used to help restore a person's eligibility for expungement. Under the Utah Expungement Act, eligibility is based on both the number and level of criminal convictions on a person's criminal record. For example, four class B misdemeanors from four separate criminal episodes will result in a denial of expungement eligibility. But if one of those class B misdemeanors is reduced to a class C misdemeanors, eligibility may be restored. If a minor misdemeanor conviction can be reduced to the infraction level, then that conviction will no longer count against expungement eligibility at all.

A 402 reduction can also shorten the waiting period for expungement eligibility. For a single felony conviction, a seven-year waiting period is required. Reducing that felony to a class A misdemeanor reduces the waiting period by two years.

Finding a Criminal Defense Attorney for a 402 Reduction

If you are seeking a reduction in the level of your conviction under Utah Code 76-3-402, the assistance of an experienced criminal attorney can help give you the best chance of success. Utah criminal defense attorney Stephen Howard has substantial experience in obtaining 402 reductions for a wide variety of felony and misdemeanor charges. Based in Salt Lake City, Mr. Howard provides legal services to clients throughout Utah.

Contact us today to arrange for an initial consultation.

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