Utah 402 Reduction Attorney
- Felony and Misdemeanor
Utah
law provides that a person who has successfully completed probation may
have the level of the offense or conviction reduced if the court is
convinced that the reduction is "in the interest of justice." Commonly
referred to as a "402 reduction," this process may allow you to reduce
a
felony
conviction to the
misdemeanor
level. A 402 reduction may also be used in some cases to restore a
person's eligibility for
expungement.
The reduction process is not automatic (even if the prosecutor has
agreed to the reduction as part of plea negotiations). Having the
assistance of experienced criminal defense attorney can help give you
the best chance of getting your charges reduced.
As a
Utah
criminal defense attorney
based in Salt Lake City, Stephen Howard has successfully helped clients
reduce a variety of Utah
criminal convictions. His results include reductions for clients with
serious aggravated felonies as well with multiple convictions across
several
jurisdictions. We can usually tell you
over the phone if you qualify for a 402 reduction.
Contact us today for an
initial consultation.
This page contains information on:
How
to Obtain a Utah 402 Reduction
A section 402 reduction is not automatic. Even if the prosecutor
stipulated to the reduction as a part of a
negotiated
plea agreement,
a persuasive motion must be filed with the
court following the completion of probation. Even with the prosecutor's
stipulation, the court must still be convinced that the reduction is
"in the interest of justice."
Utah
Code 76-3-402 provides that the reduction in the level of conviction
may occur either at sentencing, or following the completion of
probation. Reductions at the time of sentencing are rare. Most people
seeking a reduction in the level of conviction are pursuing the
reduction following the completion of probation. The following
paragraphs outline the process of obtaining a 402 reduction under Utah
law.
Successful Completion
of
Probation: Utah
law requires, as a preliminary qualification for a 402 reduction, that
the defendant complete probation successfully. Previous versions of
this statute required that the defendant be discharged from probation
"without violating" the terms of probation. But in 2007, the
legislature
re-wrote the statute, requiring instead only that probation be
completed "successfully."
This legislative change is significant. Under
the previous version of the statute, a defendant could be denied a 402
reduction on grounds that he had some minor violation of probation
early on in the case. Even a minor violation like missing a check-in
appointment with a probation officer could arguably be viewed as
sufficient to deny the reduction. Under the new statute, even if a
defendant had some "bumps in the road" during his probation, if
probation is ultimately determined to have been completed
"successfully" then a judge has authority under the new version of Utah
Code 76-3-402 to grant the reduction.
While a person may
still be eligible for a reduction under the new statute following a
probation violation or an order to show cause, a successful completion
of probation is still required. If a defendant is sent to prison,
eligibility for a 402 reduction is lost. This is true even if the
defendant subsequently completes parole successfully. Utah courts make
a distinction in this context between probation and parole, and do not
recognize a successful parole as grounds for a 402 reduction.
Filing the Motion
/ Interest of Justice:
Merely completing probation successfully does not automatically
guarantee a reduction in the level of conviction. Utah law requires
that a motion be filed with the court. The motion must demonstrate to
the satisfaction of the court that it is "in the interest of justice"
to grant the motion. Merely making a request may not be sufficient. The
burden of proof rests with the defendant to convince the court that the
reduction is in the interest of justice.
The court will allow the prosecutor an
opportunity to respond to the defense motion to reduce. Under
Utah
Code section 76-3-402, the prosecutor is required to make reasonable
efforts to give notice to any victims that the defendant is seeking a
reduction. Most prosecutors will also review the original case as well
as any subsequent criminal cases or arrests that the defendant has
accrued.
Prosecutor's
Stipulation:
After reviewing the defendant's motion, reviewing the original case
file, consulting any victims, reviewing any subsequent or prior
criminal history, a prosecutor may choose to stipulate to (agree with)
the defendant's motion if the prosecutor is convinced that the
defendant deserves the 402 reduction. If a prosecutor is not convinced,
the prosecutor may file a formal objection or may elect to remain
silent (not oppose, but not agree).
Court Hearing on the
402
Reduction Motion: If the prosecutor has stipulated to the
motion, some judges may grant the motion and sign the necessary order
without holding a court hearing. Other judges may require a hearing
even when the prosecutor has stipulated. But if the prosecutor has
filed an objection or opposition to the 402 reduction motion, the
defendant may request a hearing before the judge. At a court hearing on
a 402 reduction motion, the defense must be prepared to address any
legal or factual disputes that have been raised, as well as demonstrate
to the court that it is in the interest of justice to grant the motion.
Best
Reasons to Apply for a 402 Reduction
Reducing a Felony to
a
Misdemeanor: If
you have been convicted of a
felony in
Utah, then you probably know all
too well how difficult a felony can make your life. By It's
harder
to get a job. It's harder to find a place to live.
It may be affecting more areas of your life than you ever imagined.
But
if you have completed your
probation
successfully, you may be eligible
to have your charges reduced to misdemeanors under Utah Code section
76-3-402. Even second
degree felony convictions can sometimes be reduced to misdemeanors.
Restoring Expungement
Eligibility: In determining expungement eligibility in
Utah, BCI will consider the
age of your convictions, the number of convictions, and also the level
of those convictions. By reducing the level of your convictions, you
may be able to restore eligibility for expungement. Because the waiting
period for expungement eligibility is based in part on the level of the
conviction, you may also be able to speed up eligibility by reducing
the level of the conviction with a 402 reduction.
For
example, two felony convictions may disqualify a person from
expungement eligibility. But a 402 reduction would turn those
convictions into misdemeanors and could restore eligibility. Similarly,
a single "violent" felony cannot be expunged. But if that conviction is
reduced to a misdemeanor under Utah Code 76-3-402, the expungement
eligibility can be restored.
Too many misdemeanor
convictions, even for minor charges where a person never even had to
appear in court, can also disqualify a person from expungement
eligibility. But using a 402 reduction, some misdemeanor convictions
can be reduced to the infraction level and would no longer count
against the person's eligibility.
1-Step
or 2-Step 402 Reduction
Whether you need a one-step or a two-step 402 reduction can depend on
the level of the original conviction as well as on what you want to
accomplish. For example, a third-degree felony would only require a
one-step reduction to become a misdemeanor. A second-degree felony
would require two steps. A conviction for a class C misdemeanor would
only require a one-step reduction to become an infraction. A class B
misdemeanor would need to be reduced by two steps to become an
infraction.
If only a one-step reduction is needed, that
reduction can be granted by the court if the judge is convinced that
the reduction is in the interest of justice - even over an objection
from the prosecutor. But if a two-step reduction is needed, both the
judge and the prosecutor must agree that the reduction should be
granted. Without the prosecutor's consent, Utah law prohibits a judge
from granting more than just a one-step reduction. Under no
circumstances can a judge reduce the level of a conviction by more than
two steps.
Finding
a Utah 402 Reduction Attorney in Salt Lake City

With
an office based in Salt Lake City,
criminal
defense attorney Stephen Howard has assisted clients in
obtaining 402 reductions throughout Utah. For clients now living
outside of Utah, we can often present your 402 reduction motion to the
court and have your charges reduced without requiring your appearance
in court.
If you have made the
efforts necessary to complete probation successfully, there can be
significant benefits to getting the level of your conviction reduced.
Whether you are trying to lose the "convicted felon" label, restore
your expungement eligibility, or reach some other goal, the payoff for
a successful 402 reduction can be significant.
Contact
us now to find out if you are eligible for a 402 reduction.
Start the process today.
RELATED CRIMINAL DEFENSE TOPICS
Full
Text of Utah Code 76-3-402
Following is the
full text of Utah Code 76-3-402, as enacted by amendments in
2012. This
is the statute the governs reductions in the level of conviction for a
Utah criminal offense. Note that frequent changes can be made to Utah
criminal statutes. You are strongly encouraged to seek the assistance
of an experienced criminal defense attorney for advice specific to your
circumstances. (Please note that the Utah Legislature passed SB12 in
2017, making certain changes to Utah Code 76-3-402. Click
here
to learn more about these changes.)
Subsection
(1) governs reductions at the time of sentencing. It is rare that a
reduction is sought at the time of sentencing, and even more rare that
such a reduction is granted.
(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.
Subsection
(2) provides the procedure for seeking a reduction in the level of a
conviction following the successful completion of probation.
(2)
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:
(a) after the defendant has been successfully discharged
from probation;
(b) upon motion and notice to the prosecuting attorney;
(c) after reasonable effort has been made by the prosecuting
attorney to provide notice to any victims;
(d) after a hearing if requested by either party under
Subsection (2)(c); and
(e) if the court finds entering a judgment of conviction for the next
lower degree of offense is in the interest of justice.
Subsection (3)
limits
how much a conviction can be reduced - no more than two degrees.
(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.
Subsection (4)
clarifies
that the rules regarding reducing the level of a conviction do not
prevent expungement
of charges that would otherwise be permitted.
(4) This section does not preclude any person from obtaining or being
granted an expungement of his record as provided by law.
Subsection
(5) limits a court's ability to reduce a conviction if restitution has
not been paid by a defendant, and also acknowledges that other statutes
may preclude reductions for specific offenses.
(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.
Subsection
(6) requires that the title or nature of an offense does not change
when it is reduced - it is only the level of the offense that changes.
(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.
Subsection (7)
limits
the ability of a court to grant a reduction in the level of the offense
for some sex-related offenses.
(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.
Subsection
(8) defines the term "next lower degree of offense" as including not
only the level of the offense, but also sentencing enhancements.
(8) 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.
Contact an Attorney for Help with a 402 Reduction
Getting your charges reduced can be well worth the time and effort it
takes. An experienced
criminal
attorney can help give you the best chance of success.
Contact
us today to arrange for an initial consultation with Utah criminal
defense attorney Stephen Howard. Based in Salt Lake City, Mr. Howard
provides legal services to clients throughout Utah. He also assists
clients living out-of-state with their Utah criminal defense cases.