A 402 reduction is not an automatic process. Even with a reduction agreed to as part of a plea agreement, a motion to reduce must still be filed with the court after completing probation or parole. You must also convince the judge that the reduction is “in the interest of justice.”
Utah Code 76-3-402 allows for a reduction in the level of conviction. It can be granted at sentencing or following the completion of probation or parole. Still, reductions at the time of sentencing are rare. Most people pursue the reduction after they have completed probation or parole. The following paragraphs outline how to obtain a 402 reduction under this Utah law.
Successful completion of probation or parole: Utah law requires that you must complete probation or parole successfully. Previous versions of this statute only allowed that you complete probation successfully. But, in 2021, the legislature rewrote the rule to include that “parole” be completed successfully.
This legislative change is significant. Under the previous version of the statute, you could not get a criminal conviction reduced if you had served time in prison. Regardless of whether you had been committed to prison, if you complete probation “or parole” successfully, then a judge has authority under the new version of Utah Code 76-3-402 to grant the reduction.
Filing the Motion / Interest of Justice: Just completing probation or parole successfully does not guarantee a reduction in the level of a conviction. Utah law requires that a motion be filed with the court. The motion must demonstrate to the judge that granting the 402 reduction is “in the interest of justice.” The burden of proof rests with you to convince the court that the reduction is in the interest of justice.
The court will allow the prosecutor an opportunity to respond to the motion to reduce. Under Utah Code section 76-3-402, the prosecutor must make reasonable efforts to notify any victims that you are seeking a reduction. Most prosecutors will also review the original case, making sure probation or parole was completed successfully, that all fines and court-ordered restitution have been paid, as well as any subsequent criminal cases or arrests that may have accrued.
Prosecutor’s Stipulation: After reviewing the motion, the original case file, consulting any victims, and reviewing any subsequent or prior criminal history, if the prosecutor is convinced you are deserving of the 402 reduction, they may stipulate (agree with) the motion. If a prosecutor is not convinced, they may file a formal objection or remain silent (not agree, but not oppose).
Court Hearing on the 402 Reduction Motion: If the prosecutor has stipulated the motion, some judges will grant the 402 reduction motion and sign an order granting the reduction without holding a hearing. Other judges will set a hearing even when the prosecutor has stipulated. The judge will schedule a hearing if either the victim or the prosecutor files an objection. At the hearing, all parties will have an opportunity to present arguments and information. If the victim and the prosecutor do not file a response, the court may conduct a hearing or grant the reduction without a hearing.