Facing a felony DUI charge can be an intimidating experience, especially if you are remorseful for your crime and the tragedy it caused. However, in Utah it is 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 of your case, your attitude, the opinion of the prosecutor, and the testimony of victims.
Misdemeanor abatements under rule 402 are prohibited by law. Only felonies are eligible for reduction, either to a misdemeanor felony or a misdemeanor. DUI offenses that are felonies in Utah and therefore eligible for the 402 reduction are:
• First or second DUI with two or more prior convictions in the last 10 years
• Second DUI with prior felony DUI offense
• First or second DUI with prior conviction for motor vehicle homicide that occurred after 07/01/01
• DUI with third degree serious bodily injury
• Automobile Homicide – DUI resulting in other second degree death
Whether your specific case is eligible for the reduction depends largely on the discretion of the court. Factors that will determine if you qualify for a 402 reduction include:
• If you meet all the requirements of your initial sentence and are successfully released from parole
• The prosecutor’s position on the matter
• The position of the victims on the matter
• The nature and circumstances of the crime
• Its history and character
• If the court determines that a misdemeanor is in the interests of justice
If you are on the Utah Sex Offender and Kidnapping Offender Registry, you will not be eligible for a 402 reduction until your registration requirements expire. If you must be a registered sex offender for life, you will not qualify for this reduction. An experienced Utah DUI defense attorney will be able to review her case to determine eligibility for the 402 reduction and fight for the reduction.
Unless the prosecutor specifically agrees in writing or on court records to reduce your crime by two degrees, your 402 reduction will only be valid for one degree of your crime. The court may not, under any circumstances, reduce a charge under Utah Code 76-3-402 by more than two degrees. For DUI this means it is possible:
• Reduce a third degree felony (most DUI felonies) to a Class A misdemeanor
• Reduce a third degree felony to a Class B misdemeanor with the support of the prosecution
• Reduce a second degree felony (automotive homicide) to a third degree felony
• Reduce a second degree felony to a Class A misdemeanor
The offender will then serve their sentence according to the new charge, although the name of the offense will not be changed. Additionally, any additional penalties or statutory enhancements imposed to the original level of infraction will count as one level of reduction if removed.
Once the 402 reduction is complete and you have successfully completed your sentence requirements, your record is eligible to be expunged. A 402 reduction and subsequent expungement, therefore, could greatly affect your ability to have a successful future and reduce your chances of recidivism.