Is it Possible to Reduce a Criminal Conviction in Utah?
Jail and fines are not the only consequences of being criminally convicted. Even after they have completed their sentences and paid their restitution, many ex-convicts continue to face discrimination and financial hardship when it comes to getting jobs, securing loans, and even finding quality housing. However, relief may be in sight: depending on your circumstances, you could qualify to reduce your conviction through something called a 402 Reduction. By reducing your conviction, you can potentially reduce your sentencing, increase your job opportunities, restore your gun rights, and even become eligible to seal your record with an expungement. Salt Lake City criminal defense lawyer Darwin Overson explains how.
Benefits of Reducing Your Criminal Conviction
If you’ve been convicted of a crime, you already know how harsh society’s judgment can be. Some former offenders are fortunate enough to find plentiful employment and financial opportunities, but for many others, daily life is a challenge.
Despite a profusion of laws designed to prohibit workplace, lending, and housing discrimination, many employers, landlords, and banks find loopholes and excuses to pass over former convicts in favor of “less risky” hires or investments.
By reducing your criminal conviction to reflect a less serious category of offense, you stand to reap tremendous benefits. Utah’s laws permit eligible individuals to reduce their convictions by up to two whole degrees, which can make the difference between being a “convicted felon” — a term which carries an extremely negative connotation — and having a misdemeanor on your record.
Potential benefits include:
- Increased job opportunities. Criminal record checks are more prevalent than ever before, with one 2010 study by the Society for Human Resource Management reporting over 90% of employers screened prospective employees with background checks.
- Restoration of certain legal rights, including the right to possess a firearm. (It’s important to note that some individuals cannot reinstate their gun rights, even with a 402 Reduction, including illegal aliens and military members who received dishonorable discharges.)
- Eligibility for a criminal record expungement, which will allow you to seal your record.
- Receiving a reduced sentence, proportional to how your conviction is reduced. The lowest level felony carries up to five years in prison, while the highest level misdemeanor carries a maximum one-year sentence.
Do You Qualify for a 402 Reduction?
402 Reductions take their name from the section of Utah law which addresses them: Utah Code §76-3-402 (Conviction of Lower Degree of Offense — Procedure and Limitations). This piece of legislature contains the rules and requirements for obtaining a 402 Reduction, including the eligibility criteria.
Under the rules set forth in §76-3-402, you can reduce your conviction by one degree (e.g. Third Degree Felony to Class A Misdemeanor) if you meet all of the following requirements:
- You were able to successfully finish probation (§76-3-402(2)(a)).
- You have paid all restitution and fines required of you by the court (§76-3-402(5)(b)), and:
- You were not required to register as a sex offender.
- If you were required to register as a sex offender, the registration requirement has elapsed (§76-3-402(7)(a)). (Note that individuals required to register for life are therefore ineligible. Offenses with lifetime registration periods include sex crimes like rape and aggravated sexual assault, as well as child kidnapping.)
- The court finds:
- “It would be [unfairly] harsh to record the conviction [with the degree normally found in the relevant statute]” (§76-3-402(1)).
- Reducing the conviction “is in the interest of justice” (§76-3-402(2)(e)).
You can potentially reduce your conviction by two degrees (e.g. Second Degree Felony to Class A Misdemeanor) if you (1) meet the requirements above, and (2) the prosecutor “specifically agrees in writing or on the court record that the offense may be reduced two degrees.” Without express written consent from the prosecuting attorney, the reduction will be held to one degree if granted.
Even with the prosecuting attorney’s cooperation, two degrees is the maximum reduction permissible under Utah’s laws. Under no circumstances can you reduce your conviction by three or more degrees.
What Happens Once My Request is Approved?
If your request for a 402 Reduction is granted, the court will take care of notifying the Bureau of Criminal Identification. However, it’s still important for you to confirm with the Bureau that they have received the updated information. Your defense lawyer will help you file all the necessary forms and paperwork, which include the:
- Motion to Reduce Conviction Pursuant to Utah Code Section 76-3-402(2)
- Statement Supporting the Motion
- Request to Submit for Decision
- Notice of Hearing and Notice of Order
While there are no laws prohibiting people from representing themselves, which is called pro se representation, it is in your best interests to have an attorney handle filing and preparing the documentation. This will help keep the process efficient while eliminating the chance you could accidentally make a mistake or leave something off of your forms.
If you were convicted of or have been charged with committing a felony or misdemeanor offense in Utah, it’s extremely important to seek experienced legal representation immediately. To start discussing your situation in a free and confidential case evaluation, call defense attorney Darwin Overson at (801) 758-2287 right away.