Can a Misdemeanor Be Changed to a Felony in Utah?

Salt Lake City criminal lawyer

Criminal offenses are divided into two categories: misdemeanors, which are less serious, and felonies, which are more serious.  While you may hear some jurisdictions using slightly different terminology, the basic distinction between misdemeanors and felonies remains the same.  But is it possible for misdemeanor charges to turn into felony charges after you’ve been arrested in Utah? On the other hand, if you’ve been charged with a felony, can the charges be reduced to the misdemeanor level?  Criminal defense attorney Darwin Overson explains how criminal charges can become more (or less) severe after a defendant is arrested.

How a Misdemeanor Charge Can Be Raised to a Felony

Unfortunately for defendants, it is possible for misdemeanor charges to later be raised to felony charges.  This can occur if additional evidence comes to light which corresponds with the relevant statute’s definition of aggravated charges (e.g. simple assault becoming aggravated assault), or with another statute’s description of a similar crime (such as manslaughter, which involves recklessly causing death, becoming murder, which involves intentionally causing death).

To use our first example, the Utah Code defines simple assault as an intentional act or attempt to cause bodily injury.  Aggravated assault shares a similar description, with a few key differences which make it the more serious of the two crimes.  Aggravated assault involves more serious injuries to the victim, and/or the use of a “dangerous weapon.”  Using this example, if evidence emerges during a case which proves that a simple assault defendant in fact used a dangerous weapon, it is possible that he or she could then be charged with aggravated assault in accordance with the underlying statute (Utah Code § 76-5-103).

This is where the term “aggravating factors” comes from.  In essence, aggravating factors are factors which make the crime more serious.  Other examples include aggravated murder (sometimes called capital murder), aggravated burglary, aggravated robbery, and aggravated sexual assault.

The following are some common aggravating factors which may be relevant to a variety of criminal allegations:

  • Acting in a “heinous, cruel, or depraved manner,” such as torturing or abusing the victim.
  • Having a history of prior offenses, particularly in cases where the prior offenses were felonies or occurred recently.  This concept is called recidivism.
  • Committing a hate crime.  In New York, for example, hate crime designation can raise criminal grading by one full level.
  • Crimes where the victim was vulnerable due to extreme youth, extreme age, or mental and/or physical disability or impairment.  This can also apply to cases where the defendant was in a position of authority over the victim (such as a coach, priest, or teacher).
  • Committing the crime against or in the presence of a minor.

Reducing Criminal Penalties with Mitigating Factors

Now it’s time for the good news: just as misdemeanors can be upgraded to felonies, felonies can potentially be reduced down to misdemeanors.  This can occur when there are mitigating factors.

Mitigating factors are the opposite of aggravating factors.  While aggravating factors elevate a crime into a higher and more serious category, mitigating factors work in the defendant’s favor. Mitigating factors reduce criminal liability — and in turn, the potential consequences of a conviction.

Needless to say, mitigating factors will always vary based on the nature and details of the underlying offense.  While the mitigating factors outlined in 18 U.S. Code § 3592 (Mitigating and Aggravating Factors to Be Considered in Determining Whether a Sentence of Death is Justified) pertain specifically to aggravated murder and other capital crimes in the context of the statute, similar mitigating factors can impact a wide variety of criminal cases.  For example, any sort of defendant can benefit from having a clean record with no prior offenses, regardless of whether he or she is being charged with DUI, drug possession, weapons charges, or any other type of criminal offense.

18 U.S. Code § 3592 provides the following mitigating factors:

  • Disturbance — This refers to acting “under severe mental or emotional disturbance.”
  • Duress — This means the defendant was under stress of an “unusual and substantial” nature.
  • Equally Culpable Defendants — This means that another defendant, who participated in the same way, is not receiving the death penalty.  Needless to say, in Utah this applies only to cases involving aggravated murder, the only offense punishable by death under Utah law.
  • Impaired Capacity — This refers to the defendant’s ability to grasp the “wrongfulness” of his or her conduct.  For example, a defendant with a severe cognitive disability may be unable to understand the moral and legal implications of his or her actions.
  • Minor Participation — This refers to the extent of the defendant’s participation, not the age of the victims or accomplices.
  • No Prior Criminal Record — This is fairly self-explanatory.  Past violations or misdemeanors tend to be considered more favorably than past felonies, particularly if they occurred in the distant past.
  • Victim’s Consent — The victim agreed to the activities culminating in the victim’s death.

Other miscellaneous variables that can act as mitigating factors include “background, record, or character or any other circumstance of the offense that mitigate [against imposition of the death sentence].”

If you’ve been arrested for a felony or misdemeanor in Utah, you need an experienced criminal defense lawyer on your side who can fight to have the charges reduced or dismissed.  To set up a free and confidential legal consultation, call the law offices of Overson Law LLC at (801) 758-2287 today.

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