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Reducing Prior Felony Drug Convictions

If I was previously convicted of a felony drug possession charge, will my charge be automatically reduced to a misdemeanor since the legislature changed the level of most drug charges in 2015?

Significant changes were made to a variety of Utah's criminal laws during the 2015 legislative session. One of the most dramatic changes was the reduction of many felony drug possession charges to the misdemeanor level.

If you are facing prosecution for a drug charge or if you have been previously convicted and are now seeking to reduce the level of your conviction or clear your record, contact us today to see how an experienced criminal defense attorney can help you.

IMPORTANT UPDATE - In 2017, the legislature amended Utah Code 76-3-402 to include the following language: "the court shall consider as a factor in favor of granting the reduction that, subsequent to the defendant's conviction, the level of the offense has been reduced by law." This language further supports the argument that a felony conviction for drug possession (or other offenses which have been reduced by the legislature) should be reduced to the misdemeanor level. If you have a criminal record that is holding you back in life, contact us today to see how we can help you.

Legislative Reduction in Utah Drug Offense Levels

Under prior law, most possession charges for drugs such as heroin, methamphetamine, cocaine, and many prescription drugs began at the third-degree felony level. With enhancements, the level of the offense could be even higher. But under the new law, most drug possession charges start at the misdemeanor level

Under the old laws, many thousands of people have been convicted at the felony level for conduct that would today be considered only a misdemeanor. This change in the law raises the question of whether a person who was previously convicted of a felony for simple drug possession should still be required to bear the burdens associated with being a "convicted felon."

Retroactive Application - Pending Cases

The language of the legislature's amendments to Utah drug law does not contain any provisions for retroactivity (meaning the amended statute applies only to crimes committed after the new law took effect). However, Utah courts have ruled that a person who has been convicted but not sentenced for a crime is entitled to be sentenced at the reduced level of the amended criminal law.

The courts have reasoned that there is no rational basis for punishing conduct at the higher felony level when the legislature has determined that the conduct is now deserving only of misdemeanor-level punishment. Although the case law is not fully developed on sentencing for probation violations, the same reasoning could be applied to an order to show cause hearing for a probation violation where the original conviction was at the higher level.

Retroactive Application - Closed Cases

While the courts have ruled that a pending charge can be reduced to conform with a legislative reduction in the severity of an offense, the courts will not apply the retroactive reduction to cases that are already closed. People who have already completed probation or finished a jail or prison sentence are not entitled to any automatic reduction in the level of their conviction. But there are other alternative methods to reducing a conviction or clearing a record.

402 Reductions - Felony or Misdemeanor

Under Utah Code 76-3-402, a person who has been previously convicted of a crime may ask the court to reduce the level of the conviction by one or two steps. Commonly referred to as a "402 reduction" motion, this process allow a person to have a felony conviction reduced to the misdemeanor level or may be used to speed up eligibility for expungement.

There are two key qualifications for a 402 reduction. The first requirement is successful completion of probation. (Note that the law makes a distinction between probation and parole - a person who has been to prison and successfully completes parole will not qualify for a 402 reduction.) The second requirement is a demonstration to the court that the requested reduction is "in the interest of justice."

Successful completion of probation is not, by itself, sufficient to merit an automatic reduction in the level of the offense. While the concept of "the interest of justice" is somewhat vague, the court generally must be convinced that the person requesting the reduction deserves the reduction and that society at large does not need to be protected by keeping the conviction at its original level.

If a prosecutor will stipulate (agree) to the 402 reduction, then many judges will grant the motion without a hearing. But if the prosecutor objects or refuses to stipulate, the defendant is entitled to request a hearing where information and argument can be presented to the court.

Expungement

For a person who has a felony conviction for drug possession who is not eligible for a 402 reduction, expungement can provide an alternate method of clearing the felony conviction from their record.
Expungement of a criminal case involves the sealing of court records, police reports, prosecutor files, and BCI criminal history records.

Regardless of whether a person successfully completed probation, served jail time, or went to prison, a person who meets the statutory qualifications for a certificate of eligibility may petition the court for an order expunging or sealing the records of the case. Once expunged, a person is allowed to answer most questions regarding the case as though the incident had never happened.

The requirements for expungement eligibility are fixed by statute. BCI is required to perform a background search to determine how many convictions an applicant has (in Utah as well as in other states or in the federal system) and what level of offense those convictions involve. The standard for eligibility is based on both the number and level of prior convictions on the person's record. Too many convictions, and BCI cannot issue a certificate of eligibility. Without a certificate of eligibility, a person cannot even petition the court for expungement.

Pardon

A person who does not qualify for either a 402 reduction or an expungement may still have another option for clearing their record. The Board of Pardons and Parole has authority to grant a pardon (which has essentially the same effect as an expungement), but is not bound by the same statutory eligibility requirements that govern expungement eligibility.

The pardon process begins with the preparation of an initial application. The initial application requires collecting police reports, court records, a BCI denial of a certificate of eligibility, and an official BCI criminal history report. A successful application will also contain enough information about the defendant and his/her circumstances and life history to convince the Board to grant a hearing.

The Board is not required to hold a hearing on every pardon application. The initial application will first be reviewed to determine whether a hearing will be held. If the application is not sufficiently persuasive, the Board can simply deny the application without any hearing. But if the Board is willing to consider the application further, then a hearing will be scheduled where the defendant will have an opportunity to personally address the Board.

The Board of Pardons has wide discretion to grant a pardon in cases where it determines that a pardon is appropriate. The Board can consider a wide variety of factors in making its determination, including not only the defendant's criminal record and probation/parole history, but also their personal circumstances, involvement in community activities, work history, family situation, and other facts determined to be relevant.

Summary

The 2015 amendments to the Utah criminal code reduced the level of many drug offenses. But thousands of people still have felony convictions on their records from cases that occurred prior to the amendments. Although there is no automatic reduction for convictions that have already entered, a person may be able to reduce the level of their conviction through a 402 reduction motion or have their record cleared through the expungement or pardon process.

Finding a Criminal Attorney to Clear Your Record

Utah Criminal Defense LawyerIf you have a felony or misdemeanor criminal conviction that you would like to have reduced, expunged, or pardoned, an experienced criminal attorney can provide vital counsel and assistance in preparing and presenting your case to the courts or to the Board of Pardons. Contact us today to see how we can help you. We can usually tell you over the phone whether you are eligible.


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Attorney Stephen Howard practices as part of the Canyons Law Group, LLC and Stephen W. Howard, PC.

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340 East 400 South, Suite 25, Salt Lake City, UT 84111
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In Salt Lake City, call 801-449-1409.
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Stephen W. Howard, PC

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