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.

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