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 402 Reduction
• Benefits of a Utah 402 Reduction
• 1-Step or 2-Step Reductions
• Finding a 402 Reduction Attorney
• Statutory Text of Utah Code 76-3-402

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

• How do I choose the best lawyer for my criminal defense case?
• Does a prosecutor's stipulation guarantee that a 402 reduction will be granted?
• Is a 402 reduction automatic if it was agreed upon as part of a plea deal?
• Can a 402 reduction speed up expungement eligibility?

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.