House Bill 174 made significant changes to Utah Code section 76-3-402 affect individual eligibility for a reduction in the level and severity of a criminal conviction. Defense attorneys should look carefully at these revisions and additions in determining how best to use these changes to assist their clients.
The 2023 bill includes:
- definitions for several terms that are newly relevant under the bill;
- significant changes to eligibility requirements, expanding eligibility to include many individuals with previously disqualifying circumstances; and
- minor technical and grammatical changes.
Key benefits of a successful 402 motion can include reduction of a conviction from the felony level to the misdemeanor level, restoration of rights previously denied based on a felony conviction, and possible reduction in the waiting period necessary for expungement eligibility.
Expanded Eligibility for 402 Reductions
For years, eligibility for a 402 reduction required that a person complete probation successfully. A few years ago, the legislature expanded eligibility to include those who completed parole successfully following a prison term. The 2023 amendments to section 76-3-402 include significant eligibility expansions that look more toward the overall rehabilitation process rather than just the individual’s probation or parole completion status.
Probation or Parole – In the Interest of Justice
The amendment retains eligibility for those who successfully complete probation or parole, if the court finds that the reduction is “in the interest of justice.
To guide the court in determining whether reducing the level of the conviction is in the interest of justice, the amendment adds a new subsection (7) that includes certain specific facts and circumstances that must be considered by the court (“the court shall consider…”) as well as a number of other factors that the court “may consider.”
The last factor listed for the court’s consideration is a catchall, “any other circumstances that are reasonably related to the defendant or the offense for which the reduction is sought.”
Success, even after Failure
Previous versions of section 76-3-402 have required successful completion of probation or parole in connection with the specific case in which the reduction is sought. The 2023 amendment allows the court to consider a reduction even if probation or parole in the case “did not result in a successful discharge” as long as other requirements are met.
Most important, eligibility under subsection (4) requires that a person seeking a reduction must have eventually bee successfully discharged from probation or parole “for a subsequent conviction of an offense.” In other words, even if the person was unsuccessful on probation or parole for the original case, and even if the person has a subsequent conviction in another case, the court can still grant a reduction if the person ultimately pulled things together and completed probation or parole successfully in another case.
The legislature has imposed certain time restrictions in connection with this expansion, intended to help ensure that the rehabilitation goals have been accomplished before allowing the court to consider a reduction. Specifically, the amendment requires a waiting period of at least five years since the date of sentencing in the subsequent case, or three years if the prosecutor consents to the reduction.
Completion of a Rehabilitation Program
If a person does not complete probation or parole successfully, but is able to successfully complete a rehabilitation program, the court may consider reducing the level of a conviction.
The term “rehabilitation program” is defined in the statute as including domestic violence treatment, residential, vocational, and life skills, substance abuse treatment, certain youth programs or programs approved by the Department of Corrections, drug court, veterans court, or mental health court. Each of these is further defined by reference to other statutory provisions. Also, the statute allows the court to consider any other program “that is substantially similar to” the ones listed specifically in the statute.
In addition to completing a rehabilitation program, eligibility under this subsection requires a waiting period of at least three years since successful completion of the rehabilitation program.
The Passage of Time
The 2023 amendment also includes a general provision that allows eligibility after a sufficient period of time has passed – at least five years since the person’s unsuccessful completion of probation or parole.
This subsection also limits eligibility if the offense for which reduction is sought is a violent felony. IF the conviction is for a violent felony, the court can only grant a reduction if the prosecution consents to the reduction.
Other General Requirements
In expanding eligibility for reduction beyond successful completion of probation or parole, the legislature added a few safeguards in connection with the new options for eligibility. Under the new, expanded options, the legislature generally requires that the person:
- not be convicted of a serious crime (anything more serious than a minor regulatory offense or traffic violation) during the relevant waiting periods;
- not be on parole, on probation, or currently incarcerated for any other offense; and
- not have any pending (unresolved) criminal cases.
Section 76-3-402 was last amended in 2021. The 2023 amendments add nearly four (4) full pages of additional language. Most of the new language either provides for expanded eligibility or defines terms relevant to that expanded eligibility.
HB 174 makes significant changes that potentially open exciting new doors for Individuals who have made positive progress in life. These changes should be reviewed carefully when determining eligibility for reduction and relief, or in determining whether other avenues for clearing a criminal record should be pursued.