In the Utah criminal justice system prosecutors will often agree to reduce a felony to a misdemeanor after probation. This is made possible by legislation found in UCA Sec. 76-3-402(b). Judges and attorneys refer to these as 402 reductions. 402 reductions are an excellent way of tidying up your criminal background. 402 reductions are also a clever way of shortening the waiting period for expungement.

Utah judges, by law, only consider 402 reductions upon successful completion of probation. According to Utah law a judge can reduce the offense by one level (i.e. 3rd degree felony to Class A misdemeanor) without the prosecutor’s consent. For a judge to reduce the offense by two levels the prosecutor’s consent is needed.

The sure way to benefit from a 402 reduction in your case is to get an agreement from the prosecutor before you enter a guilty plea. However you intend to get a 402 reduction, be it with the prosecutor’s consent, or without, there are certain steps that you must follow to see the reduction through.

STEPS FOR OBTAINING A STIPULATED 402 REDUCTION

  1. include the agreement to reduce as part of the plea bargain;
  2. contact your lawyer once you have successfully completed probation;
  3. attach the docket to a Stipulated Motion to Reduce Level of Offense;
  4. sign the motion for defendant (by counsel if represented);
  5. send the motion and a consistent court order to the prosecutor with a cover letter explaining that the enclosed motion is consistent with the agreement entered into at the time the guilty plea was accepted, and requesting that the prosecutor sign and submit to the judge with the accompanying order.

If you are seeking a 402 reduction without the prosecutor’s consent you should take these steps:

  1. You or your attorney should file a Motion to Reduce Level of Offense before the court loses jurisdiction at the end of probation. The motion itself should indicate that it is to be held by the court until the successful completion of probation, and then considered at that time.
  2. successfully complete probation, and;
  3. re-new your motion to Reduce Level of Offense and request a hearing (before taking this final step it is always a good idea to check with the prosecutor to see if he or she is now willing to agree to the reduction. If so, you can follow the above-indicated Steps for Obtaining a Stipulated 402 Reduction), and;
  4. be prepared to convince the judge that, based upon your character and circumstances, the reduction is in the interest of justice.

As with any legal motions, unanticipated variables tend to complicate matters. Having a good lawyer advocating for you in this cause will prove invaluable.

Remember, stay safe, be smart and call us when you need us!

Rhome Zabriskie

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