Facing a felony DUI charge can be an intimidating experience, especially if you are remorseful about your offense and any tragedy it caused. However, in Utah it may be possible to reduce your felony charge to a misdemeanor conviction under Utah Code 76-3-402, also known as a Utah 402 reduction. Whether or not your case qualifies depends largely on the circumstances in your case, your attitude, the prosecutor’s opinion, and the testimony of any victims.
Reductions for misdemeanors under the 402 rule are barred by statute. Only felonies are eligible for reduction, either to a lower grade felony or to a misdemeanor. The DUI offenses that are felonies in Utah and consequently eligible for 402 reduction are:
• First or second DUI with two or more prior convictions in the last 10 years
• Second DUI with past felony DUI offense
• First or second DUI with past automobile homicide conviction that occurred after 07/01/01
• DUI with Serious Bodily Injury 3rd degree
• Automobile Homicide – DUI resulting in death of another 2nd degree
Whether your specific case will be eligible for reduction is largely at the court’s discretion. The factors that will determine if you qualify for a 402 reduction include:
• If you complete all of your initially sentenced requirements and are successfully discharged from probation
• The prosecuting attorney’s stance on the matter
• The stance of any victims on the matter
• The character and circumstances of the offense
• Your history and character
• If the court finds a lower offense is in the interest of justice
If you are on the Sex Offender and Kidnap Offender Registry for Utah, you will not be eligible for a 402 reduction until your registry requirements expire. If you are required to be a registered sex offender for life, you will not qualify for this reduction. An experienced Utah DUI defense attorney will be able to examine your case for 402 reduction eligibility in addition as fight for obtaining the reduction.
Unless the prosecutor specifically agrees in writing or on court records to reduce your offense by two degrees, your 402 reduction will only be good for one degree off your offense. The court may not under any circumstances reduce a charge under Utah Code 76-3-402 more than two degrees. For DUI this method it is possible to:
• Reduce a third-degree felony (most felony DUI offenses) to a Class A misdemeanor
• Reduce a third-degree felony to a Class B misdemeanor with the prosecution’s sustain
• Reduce a second-degree felony (automobile homicide) to a third-degree felony
• Reduce a second-degree felony to a Class A misdemeanor
The offender will then serve his or her sentence in accordance with the new charge, although the name of the offense will not be changed. Also, any additional sanctions or statutory enhancements imposed on the original level of offense will count as a level of reduction if removed.
Once the 402 reduction is complete and you have completed your sentencing requirements successfully, your record is eligible to be expunged. A 402 reduction and a later expunction, consequently, could greatly impact your ability to have a successful future and reduce your chances of recidivism.