Question: Can A Conviction That Contains Elements Of Violence Cost You Your License?
Answer: Yes. See Below.
On September 17, 2015, the Enforcement Division of the Indiana Department of Insurance filed a Motion to Revoke Bail Agent License with the Commissioner which alleged that Putman had been found guilty of battery as a class D felony and which requested an order revoking Putman’s bail agent license. That same day, the Commissioner issued an order revoking Putman’s license and providing that he may not reapply for a license until 10 years from the date of his conviction or release from prison, parole, or probation, whichever is later. Putman filed a motion to rescind the Commissioner’s order stating that he was convicted of battery as a misdemeanor. The Enforcement Division filed a Motion to Modify Revocation Order on Bail Agent License stating that the court in the Criminal Cause entered a sentence against Putman as a class A misdemeanor and requesting that the Commissioner issue a modified order which reflected the appropriate restriction on reapplication of 5 years instead of 10 years. Putman filed a reply arguing that his misdemeanor battery conviction did not constitute a qualifying offense to revoke his license because it was not a misdemeanor in which an element of the offense involves violence under Ind. Code §27–10–1–6.1. The Commissioner entered Findings of Fact and Modified Order Revoking Bail Agent License which found that, since Putman’s conviction was entered as a class A misdemeanor battery, which is a misdemeanor with an element of violence, the order should be modified to reflect the appropriate restriction and entered a modified order that Putman’s bail agent license was revoked and that he may not reapply for a license until 5 years from the date of his conviction.
On June 6, 2016, Putman filed a Petition for Judicial Review and for Stay of Final Order with the trial court. The memorandum decision states that Putman inadvertently called a bank, the bank’s telephone recording system activated, and the recording system captured a loud, 4-minute beating. Bank employees listened to the recording and called the police. In the recording, one can hear the sounds of Putman striking his grandchild several times and breathing heavily. The recording captured Putman’s grandchild repeatedly screaming “Ow! Ow! Ow!” and crying in fear. At one point the child coughed repeatedly, Putman responded sarcastically “yeah, cough cough cough,” next the child screamed “you’re choking me!”, and Putman said, “you think I care?” Putman shouted “God damn you!” and called the child “smart-assed,” “smart-mouthed,” and a “baby.” In the decision, we observed that Putman’s physical assault interfered with the child’s ability to breathe and that a reasonable finder of fact could infer from the child’s screams and choking that Putman caused him to experience physical pain, and we rejected Putman’s argument that he was engaging in reasonable discipline of the child.
On appeal, the issue is whether the trial court erred in reversing the Commissioner’s decision to revoke Putman’s bail agent license? The Commissioner determined that Putman’s offense, battery against his grandchild as a class A misdemeanor, constituted a disqualifying offense under Ind. Code § 27–10–1–6 and thus served as grounds for the revocation of Putman’s bail agent license under Ind. Code § 27–10–3–8(d). We conclude that the Commissioner’s interpretation of Ind. Code § 27–10–1–6 is reasonable. “Violence” is generally defined as “physical force exerted for the purpose of violating, damaging, or abusing” or “abusive or unjust exercise of power.” The American Heritage Dictionary 1921 (4th ed. 2006). It is also defined as “the use of physical force, usu. accompanied by fury, vehemence, or outrage; esp., physical force unlawfully exercised with the intent to harm.” Black’s Law Dictionary 1801 (10th ed. 2014). We observe that, according to Ind. Code § 35–42–2–1, a person who knowingly or intentionally touches another person in a rude, insolent, or angry manner commits the offense of battery as a class B misdemeanor. The statute further provides that the offense is elevated to a class A misdemeanor if the battery results in bodily injury which includes physical pain. This elevated class A offense was the offense which Putman committed against his grandchild. The offense for which Putman was convicted required more than simple physical contact with the victim; it required that the physical contact result in bodily injury. It is not unreasonable to conclude that an offense which results in bodily injury also includes an element which involves violence.
In addition, according to Putman’s petition for judicial review, his battery conviction resulted from a spanking which he administered to his grandchild. Putman’s daughter testified before the ALJ that Putman accidentally hit the dial button, it went to a recording, and in the recording her son is screaming and hollering that he was being choked. While we do not attempt to establish the boundaries of the occurrences in which an element of a misdemeanor offense involves violence, we cannot conclude that the Commissioner was unreasonable in determining that Putman’s battery of his grandchild resulting in bodily injury included an element which involved violence for the purpose of revoking his bail agent license in this case. Accordingly, we reverse the trial court’s ruling and remand with instructions to enter an order which does not disturb the Commissioner’s May 6, 2016 Final Order. 98 N.E.3d 98