Finding out that your criminal record is not eligible for expungement can feel like hitting a dead end. Maybe you have too many convictions, one of your convictions is at a level that keeps you from qualifying, or, you still have more time to wait. In some situations, there may be another option for records in Utah: a 402 reduction.
A 402 reduction can lower the legal level of certain Utah convictions. That change in level may help some people become eligible for expungement or reach other goals in the future.
This article is for general educational purposes only. It is not legal advice. Every criminal record is different, and whether someone qualifies for a 402 reduction depends on the facts of their cases.
What is a 402 reduction?
A 402 reduction gets its name from Utah Code Section 76-3-402. It is a court process that can lower the severity, or degree, of a criminal conviction.
Utah convictions have different levels. For example, felonies have three degrees (first, second and third) and misdemeanors have three classes (A, B and C).
A 402 reduction can move an eligible conviction down that ladder.
For example:
Third-degree felony → Class A misdemeanor
A second reduction could potentially move it again:
Class A misdemeanor → Class B misdemeanor
A conviction can be reduced by one or two degrees total. For a two-degree reduction, the prosecutor needs to agree.
A 402 reduction does not erase the conviction, it changes its legal degree. The conviction still exists until it can be expunged, if expungement is possible for the offense. Additionally, the name of the offense does not change, only the degree changes.
Why would someone want a 402 reduction?
A reduction can matter because the level of a conviction can affect whether a record meets Utah’s expungement rules.
For example, someone might currently have too many convictions of a certain level, the wrong combination of conviction levels, an offense at a level that is not eligible, or more time left in an expungement waiting period. Lowering the degree of a conviction may change how the record fits within those rules.
That does not mean getting a 402 reduction automatically makes a person eligible for expungement. Other rules can still apply. A better way to think about it is:
A 402 reduction may open a door that was previously closed. It does not promise what is on the other side.
What is the difference between a one-step and two-step reduction?
A one-step reduction lowers a conviction by one degree.
For example:
Third-degree felony → Class A misdemeanor
For many one-step reductions, the prosecutor does not have to agree, though the prosecutor does have an opportunity to respond and object. Certain situations can require prosecutor agreement, including some violent offenses when probation or parole was not successfully completed.
A two-step reduction lowers a conviction by two degrees.
For example:
Third-degree felony → Class B misdemeanor
A two-step reduction does require the prosecutor’s agreement. Because the prosecutor must agree, these requests may take longer and can be more difficult.
The important point is that asking for one step and asking for two steps are not exactly the same process.
How could someone qualify for a 402 reduction?
One common path is for someone who successfully completed probation or parole. Utah law also gives some people options even if their probation or parole did not end successfully.
Here are the main pathway options:
Path 1: You successfully completed probation or parole
This is the most straightforward path.
Successful completion generally means the person followed the requirements of probation or parole and was successfully discharged with no further action.
Someone using this path must also meet the other requirements for a reduction. These can include rules involving restitution, registration requirements and whether the court believes granting the reduction would be in the “interest of justice.”
But what if probation or parole did not end successfully?
That does not always mean the door is closed.
Path 2: You later successfully completed probation or parole in another case
Imagine someone did not successfully complete probation or parole in the case they want reduced. Later, that person had another case and did successfully complete probation or parole in that later case.
That later success may create another path to a 402 reduction.
Generally, at least five years need to have passed since sentencing in the later case. That time can be shortened to three years if the prosecutor agrees. The person also cannot have new qualifying offenses during the required period.
Path 3: You successfully completed a rehabilitation program
There is yet another possible path for someone whose probation or parole did not end successfully.
A person may be able to ask for a reduction after successfully completing a qualifying rehabilitation program and then waiting at least three years.
During that time, other eligibility rules apply. For example, Utah Courts says the person cannot have a new felony or misdemeanor conviction during the three-year period, other than a traffic or minor regulatory offense. There also cannot be another criminal case pending against the person.
The important takeaway is simple: an unsuccessful end to probation or parole does not always mean a 402 reduction is impossible.
Path 4: Enough time has passed after unsuccessful probation or parole
There is still one more path for people who did not successfully complete probation or parole.
If it has been five years or more since probation or parole did not result in a successful discharge, there may be a path forward if certain other requirements are met.
What other requirements can matter?
Qualifying through one of the paths above does not automatically mean the court will grant a reduction.
In general, a person looking for a reduction should not have an open criminal case, cannot owe restitution on the case, must meet applicable registration requirements, and must show that the reduction would be in the interest of justice.
What does “in the interest of justice” mean?
Even if someone meets the basic requirements, the judge still has to decide whether lowering the conviction makes sense.
This is called deciding whether the reduction is in the “interest of justice.”
That may sound complicated, but it basically means the court looks at the bigger picture.
The court can look at things such as what happened in the original case, how serious the offense was, the harm caused, the person’s criminal history, work and community service, rehabilitation, and how a conviction affects professional licensing, public safety and other related circumstances.
Meeting the eligibility requirements therefore means someone may be able to ask for a reduction. It does not mean the judge has to grant one.
What happens after someone asks for a 402 reduction?
The process generally begins by filing a 402 reduction motion with the court.
Then, the prosecutor is then given an opportunity to respond. Additionally, the prosecutor is responsible for notifying any victim in the case. The prosecutor, victim or both may object to the request.
For a one-step reduction, the prosecutor generally has 35 days to respond. If there is an objection, the court can hold a hearing where the different sides can provide information to the judge. If no opposition is filed, the judge may be able to decide the request without a hearing. Utah Courts explains the filing and response process in more detail.
Two-step reductions work differently because the prosecutor must agree to the second step. There is not a set deadline for obtaining that agreement, so these cases can take longer.
If the judge grants the reduction, the court issues an order changing the degree of the conviction. The change should then be reflected in the court record and criminal history.
Again, the conviction itself is not erased by the reduction.
Could a 402 reduction help with expungement?
Possibly.
A 402 reduction and an expungement are two different things.
A 402 reduction changes the degree of a conviction.
An expungement can seal eligible criminal records.
Because Utah’s expungement rules look at things like the number and degree of convictions on someone’s record, lowering a conviction may change whether that record fits within the expungement rules.
That is why someone who learns they are not currently eligible for expungement should not give up without considering reductions.
Where can you start?
You do not need to understand every part of Utah criminal law before learning more about your record. A useful starting point is gathering a few basic pieces of information:
- What convictions are on your record and what degree is each one?
- Did you successfully complete probation or parole?
- If not, did you later successfully complete probation or parole in another case, complete a rehabilitation program, or have several years pass since the unsuccessful discharge?
- Do you still owe restitution or other court costs?
- Are there any current criminal cases, probation or parole?
- Would lowering one or two conviction levels change how your record fits Utah’s expungement rules?
Rasa’s eligibility tool can help you understand what is on your record and whether a 402 reduction may be something to explore.
Learning that you are not eligible for expungement today does not always mean you will never have another option. Utah’s 402 reduction law creates several possible paths. Understanding which path might apply is a good first step toward understanding what may be possible for your record and having a new path forward, hopefully record free.