Example 1. One-Step Reduction Years Later. You were convicted in the Provo Justice Court of a Class B Misdemeanor Possession of a Controlled Substance—Marijuana. You have prior offenses, so you are not eligible for a plea in abeyance or diversion agreement. You successfully complete all terms of your probation and the case is closed successfully. Your Utah 402 reduction attorney moves the sentencing court to reduce the Class B Misdemeanor to a Class C Misdemeanor. The 402 reduction process was not part of your plea bargain or sentence agreement.
Example 2. One-Step Reduction After Successful Probationary Term. You were convicted of a third-degree Felony DUI (“Driving Under the Influence”) in the Juab County Fourth District Court. As part of the plea and sentence agreement, the judge and prosecutor agree to a Rule 402 reduction of the Utah Felony DUI to a Class A Misdemeanor when you successfully complete all probationary terms. Upon discharge from Utah Adult Probation and Parole, your Utah Felony DUI closes successfully. Your attorney moves the sentencing court to reduce the third-degree Felony DUI to a Class A Misdemeanor. Your official criminal record now reflects you are not a convicted felon.
Example 3. Two Step Reduction after Successful Probation. You are convicted of a second degree Felony – Criminal Mischief because you destroyed a critical infrastructure. Part of your plea and sentencing agreement is that the second-degree Felony conviction will be reduced to a Class A Misdemeanor. This is a two-step reduction, if you successfully complete all terms of probation.
Utah Code Ann. 76-3-402 (2021) outlines the requirements for a reduction in your convictions. The requirements to reduce your convictions are as follows:
(1). You must have successfully completed probation.
(2). Your case must have been successfully closed.
(3). You cannot have too many orders to show cause or probation violations during the probationary term, even if the case was closed successfully.
(4). All court fines and court ordered restitution must be paid.
Sex Offense Registry. You can only reduce a sex offense conviction where you were required to register for 10 years when your registration requirements have expired.
Certain Kidnapping Crimes. Certain kidnapping crimes, like life-long sex offense registry crimes, you cannot use a 402 reduction on.
Failed to Pay Restitution. You failed to pay all court ordered fines or restitution. Once your criminal case closes unsuccessfully, it almost impossible to undue that unsuccessful closing.
Two-Step Reductions—Require Prosecutor Consent. A one-step reduction decision is entirely up to the sentencing court to decide, even over the objection of the prosecuting attorney. A two-step reduction requires prosecutorial agreement. If the prosecutor doesn’t agree, you don’t get a two-step reduction.
You Already Received a One-Step Reduction. Sometimes, part of your plea and sentencing agreement you will have already received a one-step reduction upon your successful completion of probation. You cannot then ask the court for another reduction, making it a two-step reduction, without prosecutorial agreement. At first glance, you may think you are eligible for a one-step reduction, but upon closer look at the court docket, you already received a one-step as part of probation and therefore the second step reduction requires prosecutor consent.
You Went to Prison. Currently, the law, as of 2021, is disputed whether you can reduce a criminal conviction where you sent to prison. If you were sent to the county jail, there is no issue. Assuming all other requirements are met, you can still get a 402 reduction.
When Can I Use a 402 Reduction?
At Sentencing. At sentencing the court can reduce your convictions. This option is rarely used. Instead, the courts prefer to see how you do on probation, and then reduce your criminal conviction as an incentive to successfully complete probation.
Post Sentencing. Most often people years later contact an attorney to file a 402 reduction on their old convictions. This could be one year after getting off probation, or twenty years after getting off probation.
After Successfully Completing Probation. Often 402 reductions are guaranteed as part of your plea and sentencing agreements where your criminal conviction will be reduced by two or one level after successfully completing probation.
The Benefits of a Utah 402 Reduction.
Reducing your Utah Felony conviction to a Misdemeanor conviction is huge. As a convicted felon, your voting and firearm rights are at stake. Housing and employment with any criminal record is harder to obtain. Reducing your criminal convictions is very affordable and well worth hiring an attorney.
Restoring Utah Expungement Eligibility.
When you are barred from a Utah expungement, sometimes you can use a Rule 402 reduction to make you eligible for an expungement again.
Example. Too Many Class A Misdemeanors. You were convicted for three Class A Misdemeanors in three different criminal episodes under Utah law. You cannot expunge your criminal record if you have three or more Class A Misdemeanors on your record. One solution is to file a Rule 402 reduction on one or all of the Class A Misdemeanors, dropping them down to Class B Misdemeanors. This allows you now to qualify for a Utah Expungement because you don’t have three or more Class A Misdemeanors.
FULL TEXT OF STATUTE AS OF 0/26/2021:
76-3-402. Conviction of lower degree of offense — Procedure and limitations.
(1) As used in this section, “lower degree of offense” includes an offense for 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 in accordance with this section.
(2) The court may enter a judgment of conviction for a lower degree of offense than established by statute and impose a sentence at the time of sentencing for the lower degree of offense if the court:
(a) takes into account:
(i) the nature and circumstances of the offense of which the defendant was found guilty; and
(ii) the history and character of the defendant;
(b) gives any victim present at the sentencing and the prosecuting attorney an opportunity to be heard; and
(c) concludes that the degree of offense established by statute would be unduly harsh to record as a conviction on the record for the defendant.
(a) If the court suspends the execution of a defendant’s sentence and places the defendant on probation, regardless of whether the defendant is committed to jail as a condition of probation, the court may enter a judgment of conviction for a lower degree of offense:
(i) after the defendant has been successfully discharged from probation;
(ii) upon motion and notice to either party;
(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; and
(v) if the court finds entering a judgment of conviction for the lower degree of offense is in the interest of justice.
(b) In making the finding in Subsection (3)(a)(v), the court shall consider as a factor in favor of granting the reduction, after the defendant’s conviction, whether the level of the offense has been reduced by law.
(a) An offense may be reduced only one degree under this section, whether the reduction is entered under Subsection (2) or (3), unless the prosecuting attorney specifically agrees in writing or on the court record that the offense may be reduced two degrees.
(b) An offense may not be reduced under this section by more than two degrees.
(5) This section does not preclude an individual from obtaining or being granted an expungement of the individual’s record in accordance with Title 77, Chapter 40, Utah Expungement Act.
(6) 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.
(7) 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.
(a) An individual may not obtain a reduction under this section of a conviction that requires the individual to register as a sex offender until the registration requirements under Title 77, Chapter 41, Sex and Kidnap Offender Registry, have expired.
(b) An individual required to register as a sex offender for the individual’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 individual to register as a sex offender.
(a) An individual may not obtain a reduction under this section of a conviction that requires the individual to register as a child abuse offender until the registration requirements under Title 77, Chapter 43, Child Abuse Offender Registry, have expired.
(b) An individual required to register as a child abuse offender for the individual’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 individual to register as a child abuse offender.
Amended by Chapter 151, 2020 General Session