Utah Code 76-3-402 - 2017
Amendments
The
Utah Criminal Code provides a means whereby a person who has been
previously convicted of a crime can have the level of the offense
reduced, following the successfully completion of probation. In 2017,
the Utah Legislature passed SB12 which made minor changes to Utah Code
76-3-402. These changes are intended to make it easier to obtain a 402
reduction for certain offenses. (SB12 also made significant changes to
the eligibility requirements under the
Utah Expungement Act.)
This page contains the text of the amended version of Utah Code 76-3-402, with a brief explanation (
in
italics)
of some of the most important changes. If you have a criminal record
that his holding you back, contact us today to see how we can help you.
76-3-402. Conviction of lower degree of offense -- Procedure and limitations. (1)
If at the time of sentencing the court, having regard to the nature and
circumstances of the offense of which the defendant was found guilty
and to the history and character of the defendant, and after having
given any victims present at the sentencing and the prosecuting
attorney an opportunity to be heard, concludes it would be unduly harsh
to record the conviction as being for that degree of offense
established by statute, the court may enter a judgment of conviction
for the next lower degree of offense and impose sentence accordingly.
(2)
(a)
If the court suspends the execution of the sentence and places the
defendant on probation, whether or not the defendant is committed to
jail as a condition of probation, the court may enter a judgment of
conviction for the next lower degree of offense:
(i) after the defendant has been successfully discharged from probation;
(ii) upon motion and notice to the prosecuting attorney;
(iii) after reasonable effort has been made by the prosecuting attorney to provide notice to any victims;
(iv) after a hearing if requested by either party described in Subsection (2)(a)(iii); and
(v)
if the court finds entering a judgment of conviction for the next lower
degree of offense is in the interest of justice.
The
following subsection 2(b) is a response largely to the Justice
Reinvestment Initiative (JRI) passed by the Legislature in 2015. Under
JRI, the levels of many criminal offenses were reduced. Some of the
reductions involved minor traffic offenses. But one of the most
significant changes was to Utah's drug laws. Prior to 2015, many simple
possession charges were set at the felony level. But under JRI, the
starting point for most drug possession offenses was reduced to the
class A misdemeanor. But this change was not made retroactive. Thus, a
person convicted of a felony drug possession charge in 2014 would not
receive any benefit from the reduction passed by the Legislature as
part of JRI. While 2017's SB12 does not go so far as to make the JRI
reductions retroactive, it does instruct the courts that they are to
consider favorably the Legislature's reduction in the level of an
offense in determining whether to grant a 402 reduction. (b)
In making the finding in Subsection (2)(a)(v), 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.
(3)
(a) An offense
may be reduced only one degree under this section, whether the
reduction is entered under Subsection (1) or (2), unless the prosecutor
specifically agrees in writing or on the court record that the offense
may be reduced two degrees.
(b) In no case may an offense be reduced under this section by more than two degrees.
(4)
This section does not preclude any person from obtaining or being
granted an expungement of his record as provided by law.
(5) The court may not enter judgment for a conviction for a lower degree of offense if:
(a) the reduction is specifically precluded by law; or
(b)
if any unpaid balance remains on court ordered restitution for the
offense for which the reduction is sought.
(6)
When the court enters judgment for a lower degree of offense under this
section, the actual title of the offense for which the reduction is
made may not be altered.
(7)
(a)
A person may not obtain a reduction under this section of a conviction
that requires the person to register as a sex offender until the
registration requirements under Title 77, Chapter 41, Sex and Kidnap
Offender Registry, have expired.
(b) A person
required to register as a sex offender for the person's lifetime under
Subsection 77-41-105(3)(c) may not be granted a reduction of the
conviction for the offense or offenses that require the person to
register as a sex offender.
(8)
(a)
A person may not obtain a reduction under this section of a conviction
that requires the person to register as a child abuse offender until
the registration requirements under Title 77, Chapter 43, Child Abuse
Offender Registry, have expired.
(b) A person
required to register as a child abuse offender for the person's
lifetime under Subsection 77-43-105(3)(c) may not be granted a
reduction of the conviction for the offense or offenses that require
the person to register as a child abuse offender.
(9) As used in this section, "next lower degree of offense" includes an offense regarding which:
(a)
a statutory enhancement is charged in the information or indictment
that would increase either the maximum or the minimum sentence; and
(b) the court removes the statutory enhancement pursuant to this section.
Finding a Utah 402 Reduction Attorney

We
have assisted clients in obtaining one-step and two-step reductions in
cases including serious violent felonies and various misdemeanor
charges. We have successfully obtained reductions from the felony to
the misdemeanor level, and we have worked with clients to restore
expungement eligibility by obtaining multiple reductions of less
serious misdemeanor convictions.
If you have a criminal
record, we can help you understand the best approach to clearing that
record. And we can work with you from start to finish in clearing your
official Utah criminal record. Contact us today to see how we can help
you.
RELATED CRIMINAL DEFENSE QUESTIONS
What is the
effect of an expungement on my Utah criminal record?
How
do I find out if I am eligible for expungement?
Is a Utah expungement considered a complete expungement?