Tennessee’s Drug Paraphernalia Immunity Law — T.C.A. § 40-7-124

1. Understanding the Drug Paraphernalia Immunity Law
2. What is T.C.A. § 40-7-124?
3. What happens if you get arrested despite using T.C.A. § 40-7-124?
3a. If you can afford to bail out…
3b. If you can’t afford to bail out…
4. Most TN police don’t know about T.C.A. § 40-7-124
5. What can we do?
6. Sticks, Pricks & Pokes: a Law That Protects LEO From Needlestick Injury (Brochure)

Summary

• People who use drugs are disproportionately affected by the criminal justice system, with possession of drug paraphernalia being one of the most common charges drug users receive.
• T.C.A. § 40-7-124 protects people from being charged with possession of drug paraphernalia, the second-most common drug-related charge in Tennessee. In 2020, Tennessee police wrote 15,529 drug paraphernalia charges.
• Due to the fact that many — if not most — Tennessee police officers and sheriff’s deputies aren’t aware of the Drug Paraphernalia Immunity Law, you may still find yourself with possession of drug paraphernalia charges from the syringes or sharp objects T.C.A. § 40-7-124 protects against; we recommend informing the law enforcement officer who pulls you over/stops you about this law — kindly ask them to google “T.C.A. 40-7-124”.
• You can help educate law enforcement about this law by sending them this resource or by printing off and giving them our brochure (“Sticks, Pricks and Pokes,” found below).

As a long-term drug user, unfortunately, I’ve had a few run-ins with the criminal justice system. I’ve spent about half of my young adult life on probation despite never committing any violent or property crimes. I’ve incurred five criminal charges in total, all misdemeanors, four of them being possession of drug paraphernalia, the other being drug possession. None of them violent. None of them causing property damage. None of them otherwise hurting — or even affecting — other people.

Many drug users — especially those who suffer substance use disorder, exhibit problem drug use, use drugs everyday, or have long drug-using careers — incur criminal charges for minor crimes-that-shouldn’t-be-crimes (in our opinion) such as possession of drug paraphernalia and simple possession.

While we believe the ultimate answer to this problem is ending the War on Drugs— not just decriminalizing drugs, but legalizing drug use — in the mean time, Tennesseans who inject drugs can benefit from learning about the Volunteer State’s Drug Paraphernalia Immunity Law — T.C.A. § 40-7-124.

Understanding the Drug Paraphernalia Immunity Law

T.C.A. § 40-7-124 — pronounced as “Tennessee Code Annotated, Title 40, Chapter 7, Section 124” — protects people who use drugs from being charged with or prosecuted for possession of drug paraphernalia (T.C.A. § 39-17-425). Possession of drug paraphernalia is a Class A misdemeanor, which carries as much as 11 months, 29 days in jail and $2,500 in fines.

Here’s how the law works: If someone in possession of syringes tells police they’re carrying syringes before a search is executed, they’re not supposed to be charged with or prosecuted for possession of drug paraphernalia.

Of all drug-related crimes in Tennessee, possession of drug paraphernalia is the second-most common behind drug possession. In 2020, Tennessee police reported 50,081 cases of drug possession and 15,529 instances of possession of drug paraphernalia.

What Is T.C.A. § 40-7-124?

Tennessee’s Drug Paraphernalia Immunity Law protects members of law enforcement from experiencing occupational needlestick injuries by giving people immunity from drug paraphernalia charges as long as they inform police they’re in possession of syringes before a search is executed. Keep in mind you must inform law enforcement that you’re in possession of such objects before you get searched, otherwise, you won’t be protected!

For example, let’s say you’re in possession of (#1.) a razor blade used to chop up cocaine, heroin, pills, or meth, or (#2.) a syringe used to inject such illicit drugs. Before you get searched, you inform the law enforcement officer who pulled you over or otherwise apprehended you of your possession of such items. You are not legally allowed to be charged with or prosecuted for being in possession of drug paraphernalia, codified in Tennessee Code Annotated as T.C.A. § 39-17-425, since you informed that officer of the presence of that razor blade or syringe.

Keep in mind that you very well can get charged with possession of drug paraphernalia for other drug paraphernalia not covered by T.C.A. § 40-7-124, such as a plate used to chop illicit drugs upon, a straw used to snort illicit drugs, and so on. Also, if you’re in possession of actual drugs and you get caught with them in this situation, you’ll likely be charged with possession of a controlled substance (T.C.A. § 39-17-418) — T.C.A. § 40-7-124 doesn’t protect you against everything that’s drug-related.

Politicians and other governmental figures want to protect law enforcement officers from being exposed to used syringes or other harmful objects. Syringes are sharp and, obviously, can cause physical harm, even if they’re 100% sterile. They can also spread disease via accidental needlestick injury.

This Tennessee drug law came about in 2015 with the intention of protecting the Volunteer State’s law enforcement officers — the uniformed public servants who do work tough, dangerous jobs — from being exposed to objects that are very much capable of spreading blood-borne diseases such as HIV or Hepatitis C.

(Note: Occupational needlestick injuries are unlikely to result in the transmission of HIV or HCV — the risk of getting HIV from an HIV-infected syringe is estimated between 0.2% and 0.5%, while the risk of getting HCV from an HCV-infected syringe runs from 3% to 10%. HIV and HCV aren’t the only diseases spread through needlestick injuries — hepatitis B is also a concern, with the likelihood of someone getting this disease from an HBV-infected syringe estimated between 2% and 40%.)

What Happens if You Get Arrested Despite the Protections Afforded by T.C.A. § 40-7-124?

Ultimately, if you want to reduce the risk of getting arrested, you should never travel with drugs or drug paraphernalia. However, this simply isn’t feasible! We drug users have to source drugs and drug paraphernalia somehow.

So, what happens if you get arrested for possession of drug paraphernalia despite playing by the rules of § T.C.A. 40-7-124?

In most jurisdictions across the Volunteer State, you’ll likely be given anywhere from six months’ to a year’s probation, along with court fees. You can choose to plead guilty to possession of drug paraphernalia so you can quickly get back to living in the real world. In fact, many of us feel forced to plead guilty in such situations to return to our jobs, parenting, and other real-world obligations that we all have to take care of.

(Note: If you don’t already know, within 24-72 hours of getting arrested and booked, you’ll have your first court date, called arraignment, where the judge reads off your charges and asks you whether you’re guilty or not. Most people say “not guilty,” after which the judge will almost always set your bail [as opposed to not giving you bail, which means you’ll have to stay in jail until your case is over with]; in Tennessee, for minor, misdemeanor crimes like possession of drug paraphernalia, the bail can’t be set at more than $1,000. Many frequent fliers of the criminal justice system, however, will tell you it’s best to plead guilty to minor crimes like possession of drug paraphernalia, especially if you don’t have a long, serious criminal record. Again, you’ll likely receive anywhere from 6 to 12 months’ probation and anywhere between $750 and $1,500 in court fines and probation fees. The biggest upside to pleading guilty to one-off, minor charges at arraignment is that you don’t have to worry about posting bail — you’ll be released immediately after pleading guilty! However, this will leave you with a blemish on your criminal record and set you back roughly $1,000 — not counting any car impound fees, other extraneous criminal “justice” costs, or a damaged reputation. Also, if you’re on probation, pleading guilty could lead to a violation. Further, if you have outstanding warrants and plead guilty at arraignment, you’re not going to get out of jail immediately.)

If You Can Afford to Bail Out

Bail out as soon as possible. Hire an attorney who is aware of T.C.A. § 40-7-124. If they’re not already aware of this law, hire another one.

With the help of an attorney, you should be okay.

Please keep in mind that I am not an attorney or otherwise legally approved by the state of Tennessee to provide legal advice. Do not take any information listed in this article or on this website as legal advice. The only people who can provide reputable, reliable legal advice are people sanctioned by the state of Tennessee to practice law.

If You Can’t Afford to Bail Out

If you’re willing to sit in jail for anywhere from a week to a month, by all means, do it! With a competent public defender’s help, given that you did comply with T.C.A. § 40-7-124, you shouldn’t be prosecuted for being in possession of drug paraphernalia. After all, T.C.A. § 40-7-124 does prevent people in such situations from being charged with or prosecuted for being in possession of drug paraphernalia.

However, most of us in Tennessee aren’t willing to do this.

Most of us are also too poor to afford legal representation. There are, however, ways for impoverished Tennesseeans to seek out free legal assistance.

Many people in rural Tennessee are simply too poor to bail out of jail and pay for an attorney. Considering that drug users, as a socioeconomic class, don’t have the same access to financial and other resources, you may very well fit under this category — not being able to afford cash bail.

That’s Right — Unfortunately, As It Stands, We’re Shit Outta Luck

Again, I’m not an attorney, and I certainly hope I’m not acting like one.

As it stands, even though T.C.A. § 40-7-124 should protect active drug users from being in possession of sharp objects used as drug paraphernalia from getting charged with or prosecuted for being in possession of drug paraphernalia, it doesn’t always protect us. I’ve been arrested for possession of drug paraphernalia before and, despite knowing about this law, it didn’t protect me. However, I didn’t try to inform the police about this law — that could have saved me.

The only thing we can do — by “we,” I mean everybody interested in harm reduction or drug policy — is to educate laypeople, law enforcement officers, local and state-level politicians, active drug users, and everybody else here in Tennessee about T.C.A. § 40-7-124.

What Can We Do?

Also, anybody and everybody who plans on talking about this stuff to others, whether that be on a public forum like Facebook or Twitter or in real-life conversations with family members, friends, community members, coworkers, peers, or others, make sure to do so in a friendly, calm, welcoming, well-thought-out manner!

Keep in mind that, as far as law enforcement agents are concerned, they regularly hear backtalk and criticism from individuals and society at large. Also, they are the only people who actually enforce laws for a living. They’ve been trained to do this, likely are required to be trained or educated on an ongoing basis, and quite literally put their health and welfare on the line while enforcing laws.

The best way — as far as I know — to get through to open-minded law enforcement officers would be to first approach friends and family members who are in the field about T.C.A. § 40-7-124 and similar laws.

If you talk to or work with law enforcement regularly, you know exactly how to handle this. For the rest of us who aren’t fortunate enough to be well-versed in educating, informing, or simply being around law enforcement officers, you could benefit from using this harm-reducing brochure — it’s called “Sticks, Pricks & Pokes: a Law That Protects LEO From Needlestick Injury” and is all about T.C.A. § 40-7-124.

Note: This brochure was made in late 2019; still, all information mentioned herein about T.C.A. § 40-7-124 is true, accurate, and up-to-date. If you want to use this, let us know and maybe we can update any other information herein that’s not up-to-date.

Disclaimer

I am not an attorney. I am not licensed to practice law in the state of Tennessee or elsewhere within the United States. The advice given herein is not meant to take the place of advice from an attorney or legal consultant

Note: A handful of websites have previously called T.C.A. § 40-7-124 “Syringe Possession Officer Awareness.” This name has yet to be adopted by the drug-using, harm reduction, law enforcement, or drug policy reform communities. We feel adopting the name “Drug Paraphernalia Immunity Law,” which is clearly labeled as a law and sounds more natural — grammatically speaking — will help spread knowledge of this law across the Volunteer State.