Utah Criminal Defense

Pleas in Abeyance

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IMAGINE:  A dispute breaks out on Friday at your Provo home between you and your wife.  The police are called and they make the decision to charge you with Disorderly Conduct and Domestic Violence.  This is your first criminal charge and you are summoned to appear at the Provo City Justice Court for an Arraignment.


Depending on the facts, one outcome could be a Plea in Abeyance on the Domestic Violence charge with the Disorderly Conduct being dismissed.  The Provo City Justice Court places you on 12 months of court probation, assesses a $683 fine and requires you to attend a domestic violence educational course.   Thereafter if you successfully complete the probationary period, the case would be dismissed under the terms of the Plea in Abeyance.  Followed next by a Utah expungement of the entire episode.

Often first-time offenders can obtain a Plea in Abeyance for their criminal charges.  Choosing ­an experienced Provo Orem criminal defense attorney for your first-time Provo Orem criminal charges can make the difference.

Where is the Utah Law Found for Plea in Abeyances?

Currently the formal code provisions for a Utah Plea in Abeyance can be found at Utah Code Ann. 77-2a-1 et seq (2018).  Further the case law has important details about how Utah courts have interpreted Utah Plea in Abeyances.

What are Pleas in Abeyance.

The basic idea behind Pleas in Abeyance is that if you successfully complete the probation term, the charges will be dismissed.  Your record will show that criminal charges were filed against you, but that the charges were never entered and the case was ultimately dismissed.  This documentation will still show up on your court record when people search for it until you expunge the Plea in Abeyance formally through the Utah Expungement Act.  See Utah Code 77-40-1 (2018).  Utah subscription based public search tool for most all adult court records is call Xchange.

Step Reduction in Charges.

Pleas in Abeyance can also just reduce your currently pled criminal charges by one, or two grade reductions.  Example.  Instead of an outright dismissal of your 3rd Degree Felony conviction, it would be reduced to a Class A Misdemeanor if and after you successfully complete your probation terms.

What are the limits of Pleas in Abeyance.

Some Plea in Abeyances probation periods can be 3 months, but most likely the probationary period will be 6-12 months.  A Plea in Abeyance may not be held in abeyance for a period longer than 18 months if the plea was to any class of Misdemeanor or longer than three years if the plea was to any degree of felony or to any combination of misdemeanors and felonies.  There is an exception for 2 year Misdemeanor probationary periods where the criminal defendant is participating in a specialty court, or problem solving court.  I.E., drug court, mental health court, veteran’s court, etc.  Most traffic ticket Pleas in Abeyances are 6 months and most Justice Court Pleas in Abeyances are 12 months.

Commercial driver license holders (“CLD”) have special provisions and restrict the full benefit of a Plea in Abeyance.  If you are a commercial driver looking for a Plea in Abeyance on your traffic offenses, you should call Utah attorney Jake Gunter to discuss the details.   See Utah Code Ann. 53-3-419 (2018) which reads:

53-3-419.  Nonresident driver violations reported to resident state.

(1)          When the division receives a report of the conviction or plea in abeyance of a nonresident holder of a CDL for a violation of a state law or local ordinance relating to traffic control, the division shall notify the driver licensing authority in the licensing state within five days of receipt of the report.

Can you take a Plea in Abeyance on Utah sex crimes?  How about a Utah DUI?

No plea may be held in abeyance in any case involving a sexual offense against a victim who is under the age of 14.   Beginning on July 1, 2008, no Plea in Abeyance can occur in any case involving a driving under the influence violation under Section 41-6a-502 (2018).

How a Utah Plea in Abeyance Interacts with the Utah Expungement Act?

A successfully completed Utah Plea in Abeyance case terms shortens the time period to seek a criminal expungement.  You only have to wait 30 days before you can apply to the Utah Bureau of Criminal Identification for an Eligibility Certificate.  Normally the waiting periods to apply for an expungement for Utah Misdemeanors is 3-5 years.

See this article that dives more deep into obtaining a Utah expungement of your criminal record.

Under what Circumstances are Pleas in Abeyance Given by the Prosecutor.

Utah County prosecutors generally want to give Pleas in Abeyance when they are dealing with a first-time offender or a very young person who has had their first interaction with the criminal justice system.

Other times prosecutors know their witnesses are extremely weak, not credible, or will not show up to the trial and will offer a Plea in Abeyance to Utah criminal defendants who are not first time offenders, and even those with a long history.

Prosecutors can still offer Pleas in Abeyance in circumstances when they simple have poor cases, bad proof and no desire to set the matter for a jury trial.  Sometimes the complaining witness to the alleged criminal episode does not have the desire to testify at trial and a Plea in Abeyance avoids all of this, but still keeps the defendant’s feet to the probationary fire.

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How Do Plea In Abeyances Effect Future Criminal Sentencing?  How Does It Effect Enhancelable Criminal Offenses?  Like Duis, Domestic Violence, Drug Possession?

Are Pleas in Abeyance Counted for Future Sentencing Considerations?  Often, statutory sentencing schemes will count prior offenses that were taken as a Plea in Abeyance as if there were convictions for criminal sentencing enhancement purposes.

As of 06/14/2018 various Utah criminal statutory sentencing schemes will consider Pleas in Abeyance as a prior conviction for enhancing a Utah conviction.  See the following:

(1). Habitual wanton destruction of protected wildlife — Third degree felony. 23-20-4.7 (2018).

(2). Animal cruelty criminal charges — Enhanced penalties.  76-9-301.7 (2018).

(3). Sexual battery. 76-9-702.1 (2018).

(4). Certain qualifying domestic violence convictions.  77-36-1.2 (2018).

(5). Criminal Lewdness.  76-9-702 (2018).

(6). Malfeasance in office — Felony charges arising from official governmental duties.  17-16-10.5 (2018).

(7). Interlock restricted alcohol driver — Penalties for driving a car without an ignition
interlock system.  41-6a-518.2 (2018).

(9). Ineligibility for teacher’s license. Educator Licenses for Pleas in Abeyance to a felony of a sexual nature.  53A-6-405 (2018).

(10). Criminal restitution orders.   Regardless of whether you take a Plea in Abeyance or a guilty plea, criminal restitution will be assessed.  A Plea in Abeyance does not avoid criminal restitution.  77-38a-302 (2018).

(11). Criminal stalking.  Pleas in Abeyance will be treated as convictions under the criminal stalking statute.  76-5-106.5 (2018) for enhancement purposes.

(12). Grounds for disciplinary action. Real estate brokers.  Prior Pleas in Abeyance.  61-2f-401 (2018).

(13). Utah Controlled Substances Act. Prohibited acts — Penalties. Pleas in Abeyance are treated as convictions for enhancement purposes.  58-37-8 (2018).

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What Are The Reasons For Revoking Provo Orem Pleas In Abeyances?

  1. Failure to pay your Plea in Abeyance fine in a timely manner is a reason to revoke your Plea in Abeyance and enter your conviction, but rarely will the court do this on the first failure to pay. Additionally, you just call your attorney and they will file a motion to extend the time to pay the fine or to set the case for a review hearing to address the issue.  The worst thing you can do is ignore the court’s orders to pay the Plea in Abeyance fine.
  2. New Criminal Arrests During the Plea in Abeyance Probationary Period. New criminal arrests can void your Plea in Abeyance because the prosecutor does not have to prove a Plea in Abeyance violation beyond a reasonable doubt, but only by a preponderance of the evidence.  Preponderance is a much lower standard than Beyond a Reasonable Doubt.
  3. Generally, most Utah County and Provo Orem courts will wait to revoked a Plea in Abeyance until an actual conviction is rendered by the jury, judge or by a plea. Then the court sets your Plea in Abeyance case for an Order to Show Cause.
  4. New Criminal Convictions. As a general rule, any new criminal conviction during the Plea in Abeyance period will void your Plea in Abeyance and the conviction will enter.  The worst part is that since sentencing was never entered and your plea was held in abeyance, your regular probationary period starts all over again.  This can extend the time you are under the court’s supervision.
  5. Failure to Start Treatment. Failure to Finish Treatment.  Inadequate Treatment.  As part of most drug or substance abuse driving criminal convictions, the court will order that you obtain a substance abuse evaluation, and then follow through with any treatment recommendations.  Failure to timely complete treatment, missing treatment will often make the judge mad enough where the benefits of your Plea in Abeyance will be revoked and the conviction entered.
  6. Testing Positive for Alcohol or Drugs. Generally, ever substance abuse driven criminal conviction will require abstinence from alcohol and illegal drugs.  Many times you will be testing randomly for illegal drug use, unlawful ranges for prescription drug use and alcohol use.  Any violation of drug and alcohol testing will generally void your Plea in Abeyance.

Possible Court Sanctions For Violating A Utah Plea In Abeyance

Just like any Utah probation violation, a Utah criminal court has a wide range of graduated sanctions to get your attention.  A good Utah criminal defense attorney can help alleviate the court’s sanctions through solid advocacy on your behalf.

Possible sanctions for violating a Plea in Abeyance could be:

(1).  Court ordered jail and close the case unsuccessfully.

(2).  Community service and continue the probationary term, giving the Utah criminal defendant another chance to successfully complete the Plea in Abeyance probationary term.

(3). Close the case unsuccessfully.  Send any fines and restitution to state debt collection.  Anytime your close a criminal case unsuccessfully it will limit your ability to obtain an expungement.

Call Provo based criminal defense attorney Jake Gunter for a free consultation regarding your criminal charges.  Call (801) 373-6345 for a free consultation.


Have you been charged with your first Provo/Orem criminal offense? Having a clean criminal record matters and as a first time offender you really need an aggressive criminal defense to help keep your Utah criminal defense record clean.

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Here is what you should know about being charged as a first time offender in Provo/Orem.

(1). Diversion Agreements. Diversion agreements can be by written information, or formally in writing under the government Utah Code provision. Diversion agreements are similar to Pleas in Abeyance in that if you successfully complete the probationary/diversion agreement period, the case will go away.

In Pleas in Abeyance, the probation period can be up to 18 months for Misdemeanor or up to 3 years for a Felony. In diversion agreements, you never plead guilty and often do not go to court ever, only that you agree to stay allegation, crime free during the diversion period. You cannot divert an agreement longer than two years.

You cannot divert the following crimes as of 2018.

(a) a capital felony;
(b) a felony in the first degree;
(c) any case involving a sexual offense against a victim who is under the age of 14;
(d) any motor vehicle related offense involving alcohol or drugs;
(e) any case involving using a motor vehicle in the commission of a felony;
(f) driving a motor vehicle or commercial motor vehicle on a revoked or suspended license;
(g) any case involving operating a commercial motor vehicle in a negligent manner causing the death of another including the offenses of:
(i) manslaughter under Section 76-5-205; or
(ii) negligent homicide under Section 76-5-206; or
(h) a crime of domestic violence as defined in Section 77-36-1.

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Surprisingly you can divert a limited number of sex offenses if the court finds the following:

When a person is alleged to have committed any violation of Title 76, Chapter 5, Part 4, Sexual Offenses, while under the age of 16, the court may enter a diversion in the matter if the court enters on the record its findings that:

(a) the offenses could have been adjudicated in juvenile court but for the delayed reporting or delayed filing of the information in district court, unless the offenses are before the court pursuant to Section 78A-6-701, 78A-6-702, or 78A-6-703;

(b) the person did not use coercion or force;

(c) there is no more than three years’ difference between the ages of the participants; and

(d) it would be in the best interest of the person to grant diversion.

Pleas in Abeyance statutory authority is found at Utah Code Ann. 77-2a-101 (2018). Diversion agreement authority is found at Utah Code Ann. 77-2-6 (2018). See this deeper article on Pleas in Abeyance HERE.

(2). Pleas in Abeyance. Utah Pleas in Abeyance as mentioned above can be given out for first time offenders, or on cases where the prosecution feels weak about their case. There are limitations to what can be taken under advisement. Provo/Orem pleas in abeyance can be taken on certain Felonies and Misdemeanors. Any failure to substantially comply with a plea in abeyance can cause the court to revoke the plea in abeyance and enter the plea as a conviction.

(3). Motion 402 Reductions. Rule 402 reduction motions reduce the severity of your criminal convictions by one or two grades. Rule 402 reductions can be by stipulation between the prosecution and the defense as part of your plea agreement, or can be litigated motions brought by the defense. One step 402 reduction motions can be granted by the judge over the prosecutor’s objection, whereas two step 402 reductions can only occur with consent of the prosecutor.

Guarantee a 402 reduction for a first time offender is a great way your Provo/Orem criminal defense attorney can advocate for you. One benefit of reducing the severity grade is that it shortens the waiting time requirements for getting an expungement of that conviction.

EXAMPLE 1: You are charged with a Provo District Court Class A Felony. As part of your plea agreement, your Provo/Orem criminal defense attorney obtains the written agreement from the prosecutor that they will stipulate to a one step Rule 402 reduction if you successfully complete the 18 month probation period effectively dropping the conviction from a Felony to a Misdemeanor. This one step reduction will shorten the required expungement waiting period from 7 years to 5 years.

EXAMPLE 2. Your Provo/Orem criminal defense attorney fought hard and obtained a plea agreement from a Third Degree Felony down to a Class B Misdemeanor. You then successfully completed the probationary terms ordered by the Provo District Court. Your Provo/Orem criminal defense attorney can then unilaterally bring a 402 reduction motion to further ask the judge to reduce the matter down to a Class C Misdemeanor. The expungement waiting period between a Class B Misdemeanor and a Class C Misdemeanor goes from 4 years to 3 years.
(4). Jury Trial. When you have a first time offender and a prosecutor who will not budge, you may need to take the case all the way. This will often force the prosecutor to reconsider their prior poor decisions not to offer a Plea in Abeyance. When you exert enough pain in time, resources and money, the prosecuting attorney who previously would not make a Plea in Abeyance offer may on the eve of trial.


Call first time criminal defense attorney Jake Gunter for a free consultation at (801) 373-6345.

Is the lawyer you are about to call have 20 plus jury trials? Experience matters in criminal defense. Contact Jake today!

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