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Utah Code 76-3-402 - 2017 Amendments

The Utah Criminal Code provides a means whereby a person who has been previously convicted of a crime can have the level of the offense reduced, following the successfully completion of probation. In 2017, the Utah Legislature passed SB12 which made minor changes to Utah Code 76-3-402. These changes are intended to make it easier to obtain a 402 reduction for certain offenses. (SB12 also made significant changes to the eligibility requirements under the Utah Expungement Act.)

This page contains the text of the amended version of Utah Code 76-3-402, with a brief explanation (in italics) of some of the most important changes. If you have a criminal record that his holding you back, contact us today to see how we can help you.

76-3-402.  Conviction of lower degree of offense -- Procedure and limitations.
(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.
(a)    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:
(i)    after the defendant has been successfully discharged from probation;
(ii)    upon motion and notice to the prosecuting attorney;
(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 described in Subsection (2)(a)(iii); and
(v)    if the court finds entering a judgment of conviction for the next lower degree of offense is in the interest of justice.

The following subsection 2(b) is a response largely to the Justice Reinvestment Initiative (JRI) passed by the Legislature in 2015. Under JRI, the levels of many criminal offenses were reduced. Some of the reductions involved minor traffic offenses. But one of the most significant changes was to Utah's drug laws. Prior to 2015, many simple possession charges were set at the felony level. But under JRI, the starting point for most drug possession offenses was reduced to the class A misdemeanor. But this change was not made retroactive. Thus, a person convicted of a felony drug possession charge in 2014 would not receive any benefit from the reduction passed by the Legislature as part of JRI. While 2017's SB12 does not go so far as to make the JRI reductions retroactive, it does instruct the courts that they are to consider favorably the Legislature's reduction in the level of an offense in determining whether to grant a 402 reduction.

(b)    In making the finding in Subsection (2)(a)(v), 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.
(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.
(4)    This section does not preclude any person from obtaining or being granted an expungement of his record as provided by law.
(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.
(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.
(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.
(a)    A person may not obtain a reduction under this section of a conviction that requires the person to register as a child abuse offender until the registration requirements under Title 77, Chapter 43, Child Abuse Offender Registry, have expired.
(b)    A person required to register as a child abuse offender for the person'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 person to register as a child abuse offender.
(9)    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.

Finding a Utah 402 Reduction Attorney

Utah Criminal Defense LawyerWe have assisted clients in obtaining one-step and two-step reductions in cases including serious violent felonies and various misdemeanor charges. We have successfully obtained reductions from the felony to the misdemeanor level, and we have worked with clients to restore expungement eligibility by obtaining multiple reductions of less serious misdemeanor convictions.

If you have a criminal record, we can help you understand the best approach to clearing that record. And we can work with you from start to finish in clearing your official Utah criminal record. Contact us today to see how we can help you.

What is the effect of an expungement on my Utah criminal record?
How do I find out if I am eligible for expungement?
Is a Utah expungement considered a complete expungement?

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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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