Utah 402 Reduction Attorney Salt Lake
If you have completed
probation successfully, Utah Code
76-3-402 provides an avenue to have the level of your conviction reduced. In some cases, this will reduce a
felony conviction to a
misdemeanor. In other cases, a 402 reduction can be used to restore expungement eligibility.
If your 402 reduction motion has been previously denied, consultation with an
experienced
criminal defense attorney may help you understand other options for
clearing your record, or for submitting a second 402 reduction.
Contact us today to arrange for an initial confidential consultation with Utah
criminal lawyer Stephen Howard.
Does Res Judicata Prevent a Second 402 Reduction Motion?
The
Latin phrase "res judicata" is sometimes used to refer to a "thing that
has been adjudicated." The purpose behind the principle of res judicata
is to prevent the relitigation of an issue that has already been
fully and finally determined on its merits.
Some lawyers
have hesitated to file a second motion to reduce the level of a
conviction under Utah Code 76-3-402, based on a belief that res
judicata prevents the issue from being relitigated. This hesitation is
based on a misunderstanding of the principle of res judicata, and also
a misunderstanding of the nature of a 402 reduction motion.
A
402 reduction decision is different from many decisions
made by a court - in that it constitutes a determination of the
interest of justice based on the current circumstances, rather than a
determination of legal rights as they existed at a particular point in
the past or a finding of facts regarding events that occurred in the
past. Many matters presented to a court involve questions of fault,
determinations of legal rights, factual determinations, etc. as they
relate to a particular point in the past. But a 402 reduction motion
asks the court to make a determination of whether the current
circumstances justify a reduction in the level of charges (i.e.,
whether the requested reduction is "in the interest of justice").
Consider the following hypothetical:
Assume
that John completes felony probation successfully on January 1, 2000.
The following week, January 8, 2000, he files a 402 reduction motion
asking that his felony conviction be reduced to the class A misdemeanor
level. At the hearing, the judge congratulates John for his successful
completion of probation, but expresses concern over his ability to
maintain a crime-free lifestyle now that he is no longer being
supervised by a probation officer. Based on that concern, the judge
denies the 402 reduction motion.
District court and
justice court judges are given wide latitude in deciding whether to
grant or deny a 402 reduction. In the circumstances above, the court
may be justified in its concern. An appellate court would likely not
overturn the decision. But this decision is based only on the
defendant's current circumstances. Imagine that ten years have passed,
and John files a second motion to reduce the level of his conviction.
Ten
years later, John has graduated from college and has held down a steady
job both while he was going to school and in the years since
graduating. He has gotten married, and has three children that he is
raising. He helps coach the local soccer team. He volunteers at the
soup kitchen. He hasn't even had a speeding ticket since he got off
probation.In this second motion, the judge is being
asked a very different question. In the first motion the judge was
asked to decide whether the interest of justice would be served by
granting a reduction to a person who had only been off probation for a
week. But in the second motion, the judge is being asked whether a
person with a ten-year track record of positive accomplishments is
deserving of a reduction. The two questions are very different; and the
second motion should not be barred by res judicata.
Finding a Utah Criminal Defense Attorney

A Utah 402 reduction motion can be used to reduce a felony conviction to a misdemeanor and to help restore
expungement eligibility.
If you have had a 402 reduction motion denied previously, or if you
want to file for the first time, an experienced criminal defense
attorney can help give you the best chance of success.
Contact us today to arrange for a confidential consultation.
RELATED CRIMINAL DEFENSE QUESTIONS
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