What does Tennessee's 'casual exchange' drug offense mean, and could the legislature add community service to the penalty?

Subject

Opinion No. 12-33, Imposition of Penalties for Simple Possession or Casual Exchange of a Controlled Substance, March 9, 2012

Plain-English summary

Representative Julia Hurley wanted two things from the AG. First, an authoritative definition of "casual exchange" as used in Tenn. Code Ann. § 39-17-418(a), Tennessee's simple-possession-and-casual-exchange drug statute. Second, an opinion on whether House Bill 2285 of the 107th General Assembly could lawfully add a community-service penalty (cleaning up litter on state highways, working in a recycling center, and the like) on top of the existing misdemeanor punishment.

The AG's answers were both short. On the first, the Court of Criminal Appeals had already defined "casual exchange" in State v. Copeland, 983 S.W.2d 703, 708 (Tenn. Crim. App. 1998): a spontaneous passing of a small amount of illegal drugs, such as at a party, where money may or may not have changed hands. The opinion noted that this definition modernized an older Tennessee Supreme Court rule from State v. Helton, 507 S.W.2d 117 (Tenn. 1974), where the court had required no money to be exchanged at all to qualify. The 1989 Tennessee Drug Control Act replaced the older statute, and Copeland clarified that money may now change hands.

On the second, the AG read HB 2285's text. The bill's proposed new subsection (g) said community service was authorized "in addition to the other penalties provided in this section." The phrase "in addition to" plus the permissive "may" left no real interpretive question: the court would have discretion to impose community service on top of any existing punishment. It would not replace the misdemeanor sentence; it would supplement it.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical background and statutory framework

Simple possession and casual exchange

Tenn. Code Ann. § 39-17-418(a) provided: "It is an offense for a person to knowingly possess or casually exchange a controlled substance, unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of a professional practice." Subsection (b) added an offense for distribution of a small amount of marijuana not in excess of one-half ounce. Subsection (c) made these offenses Class A misdemeanors (with subsection (d) and (e) creating felony enhancements for casual exchange to a minor and for repeat offenders).

A Class A misdemeanor under Tenn. Code Ann. § 40-35-111(e)(1) was punishable by up to 11 months and 29 days of imprisonment, a fine up to $2,500, or both. Tennessee's misdemeanor sentencing rule under § 40-20-102 gave courts complete discretion within the statutory ranges.

"Casual exchange" defined

The AG anchored the term to State v. Copeland: "a spontaneous passing of a small amount of illegal drugs, for instance, at a party, where money may or may not have been exchanged for the drugs." 983 S.W.2d 703, 708 (Tenn. Crim. App. 1998).

The opinion noted in a footnote that the 1989 Tennessee Drug Control Act repealed and replaced the predecessor statute. Before the change, the Tennessee Supreme Court in State v. Helton, 507 S.W.2d 117, 120-21 (Tenn. 1974), had held that a "casual exchange" required the transfer to occur "without the exchange of money." Copeland updated the meaning under the current statute.

Existing penalty add-ons

Under § 39-17-418(f), the court was already authorized to require a person convicted of simple possession to attend drug offender school, "in addition to the other penalties" imposed under the statute. Subsection (f)(2) addressed the school fee, including indigency waivers.

HB 2285's proposed addition

HB 2285 proposed a new subsection (g):

In addition to the other penalties provided in this section, any person convicted of violating subsection (a) where there is a casual exchange to an adult from an adult, may be required to remove litter from the state highway system, public playgrounds, public parks, or other appropriate locations or to work in a recycling center or other appropriate location for a prescribed period of time.

The AG applied basic statutory construction. The phrase "in addition to the other penalties provided in this section" expressly layered the new sanction on top of existing ones. The use of "may" rather than "shall" made the additional penalty discretionary. Steppach v. Thomas, 346 S.W.3d 488, 505-06 (Tenn. Ct. App. 2011), supplied the standard distinction between permissive and mandatory legislative language.

Reading the bill in pari materia with the existing statute (as required under Graham v. Caples, 325 S.W.3d 578, 582 (Tenn. 2010)) supported the same interpretation: existing subsection (f)(1) used the same "in addition to the other penalties" formulation for drug offender school.

Why the question mattered

The point of the question, in context, was probably that proposed sentencing additions like community service can read either as enhancements or as alternatives. If subsection (g) were an alternative, a judge could effectively skip jail and fine and just sentence community service; if it were an add-on, the judge had to layer on top of the Class A misdemeanor punishment. The bill's text was clear in the AG's view: it was an add-on. A judge could impose jail or fine or both, plus drug offender school, plus community service, all of the above, or any subset within discretion.

Common questions

Does "casual exchange" cover handing a joint to someone at a party for $5?

Per Copeland, yes. The amount has to be small and the exchange has to be spontaneous. Whether money changes hands does not control. The transfer itself is the criminal conduct.

How does "casual exchange" differ from drug dealing?

Under Tennessee's statutory scheme, the line is between § 39-17-418 (simple possession or casual exchange, generally a Class A misdemeanor) and § 39-17-417 (sale, delivery, manufacture, or possession with intent to sell or deliver, treated as a felony). The dividing factors include scale (small amount versus larger quantity), spontaneity (a quick pass versus planned distribution), and the presence of intent to traffic. Prosecutors and courts handle the line drawing case by case. The AG opinion does not get into trafficking line drawing.

Was the litter cleanup penalty a brand-new thing in 2012, or was something like it already on the books?

Subsection (f)(1) of § 39-17-418 already allowed courts to require drug offender school attendance "in addition to the other penalties" and to require "community service work at a drug or alcohol rehabilitation treatment center." HB 2285's contribution would have been to expand the menu of community service options (highway litter, parks, recycling centers) and to apply it to casual-exchange-among-adults cases specifically.

If the bill passed, could a judge skip the jail/fine and just impose community service?

The AG read the bill's "in addition to" language strictly: the community service was on top of the underlying Class A misdemeanor penalties. A judge could not skip the misdemeanor sentence and impose only litter cleanup. But the misdemeanor sentence itself is discretionary within ranges, so a judge could sentence within statutory limits (which include the possibility of probation or suspended sentences) and add community service on top.

Did Tennessee end up adopting HB 2285?

The opinion only addresses what would happen if the bill became law. Whether it ultimately passed is outside the scope of this opinion. Anyone trying to use the casual exchange statute in a current case should check whether subsection (g) was eventually enacted.

Citations

• Tenn. Code Ann. § 39-17-418 (simple possession and casual exchange offense)
• Tenn. Code Ann. § 39-17-417 (sale and distribution offense, with felony penalties)
• Tenn. Code Ann. § 40-35-111(e)(1) (Class A misdemeanor sentencing range)
• Tenn. Code Ann. § 40-20-102 (judicial sentencing discretion within statutory ranges)
• State v. Copeland, 983 S.W.2d 703 (Tenn. Crim. App. 1998)
• State v. Helton, 507 S.W.2d 117 (Tenn. 1974)
• State v. Sliger, 846 S.W.2d 262 (Tenn. 1993)
• Carson Creek Vacation Resorts, Inc. v. Dep't of Revenue, 865 S.W.2d 1 (Tenn. 1993)
• Steppach v. Thomas, 346 S.W.3d 488 (Tenn. Ct. App. 2011)
• Graham v. Caples, 325 S.W.3d 578 (Tenn. 2010)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-033.pdf

Original opinion text

Imposition of Penalties for Simple Possession or Casual Exchange of a Controlled Substance

QUESTIONS

1. What does the term "casual exchange" mean as used in Tenn. Code Ann. § 39-17-418(a)?

2. May House Bill 2285 of the 107th General Assembly (HB2285) impose an additional penalty for a violation of Tenn. Code Ann. § 39-17-418(a), which prohibits the simple possession or casual exchange of a controlled substance?

OPINIONS

1. The term "casual exchange" means the spontaneous passing of a small amount of an illegal drug, regardless whether money is received for the exchange of the illegal drug.

2. Yes. If adopted by the Legislature, HB2285 would give a judge the discretion to impose the penalties listed therein in addition to, but not in lieu of, any other penalties that might be imposed by a court as provided in the statute.

ANALYSIS

Under Tennessee Code Annotated § 39-17-418(a), "it is an offense for a person to knowingly possess or casually exchange a controlled substance," unless the substance was obtained pursuant to a valid prescription or order of a practitioner. This criminal statute currently provides as follows:

(a) It is an offense for a person to knowingly possess or casually exchange a controlled substance, unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of a professional practice.

(b) It is an offense for a person to distribute a small amount of marijuana not in excess of one-half (1/2) ounce (14.175 grams).

(c) Except as provided in subsections (d) and (e), a violation of this section is a Class A misdemeanor.

(d) A violation of subsections (a) or (b), where there is casual exchange to a minor from an adult who is at least two (2) years the minor's senior, and who knows that the person is a minor, is punished as a felony as provided in § 39-17-417.

(e) A violation under this section is a Class E felony where the person has two (2) or more prior convictions under this section.

(f)(1) In addition to the other penalties provided in this section, any person convicted of violating this section for possession of a controlled substance may be required to attend a drug offender school, if available, or may be required to perform community service work at a drug or alcohol rehabilitation treatment center.

(2) Any person required to attend a drug offender school pursuant to this subsection (f) shall also be required to pay a fee for attending the school. If the court determines that the person, by reason of indigency, cannot afford to pay a fee to attend the school, the court shall waive the fee and the person shall attend the school without charge. The amount of fee shall not exceed the fee charged for attending an alcohol safety DUI school program if such a program is available in the jurisdiction. All fees collected pursuant to this subsection (f) shall be used by the governmental authority responsible for administering the school for operation of the school.

Although not defined by statute, the term "casual exchange" has been interpreted by the Tennessee Court of Criminal Appeals to mean a spontaneous passing of a small amount of illegal drugs, for instance, at a party, where money may or may not have been exchanged for the drugs. State v. Copeland, 983 S.W.2d 703, 708 (Tenn. Crim. App. 1998).

2. Currently the statute, with the exceptions set forth at Tenn. Code Ann. § 39-17-418(d) & (e), proscribes punishment for the offense of knowingly possessing or casually exchanging a controlled substance as a Class A misdemeanor. A person found guilty of a Class A misdemeanor under this statute may be sentenced to imprisonment for not more than eleven months, twenty-nine days, or be ordered to pay a fine not to exceed $2,500.00 or both. Tenn. Code Ann. § 40-35-111(e)(1). In misdemeanor cases, unless otherwise provided by a specific statute, the court has complete discretion to levy the appropriate punishment within the statutory ranges. Tenn. Code Ann. § 40-20-102. Furthermore, as previously noted, under Tenn. Code Ann. § 39-17-418(f) the court may require the person convicted to attend drug offender school "in addition to the other penalties" that may be imposed under Tenn. Code Ann. § 39-17-418. HB2285 would add community service as punishment for simple possession or casual exchange of a controlled substance. HB2285 would amend Tenn. Code Ann. § 39-17-418 by adding the following subsection:

(g) In addition to the other penalties provided in this section, any person convicted of violating subsection (a) where there is a casual exchange to an adult from an adult, may be required to remove litter from the state highway system, public playgrounds, public parks, or other appropriate locations or to work in a recycling center or other appropriate location for a prescribed period of time.

In construing the language of this proposed bill, the most basic rule is to ascertain and effectuate the Legislature's intent. State v. Sliger, 846 S.W.2d 262, 263 (Tenn. 1993). Generally, legislative intent shall be derived from the plain and ordinary meaning of the statutory language when a statute's language is unambiguous. Carson Creek Vacation Resorts, Inc. v. Dep't of Revenue, 865 S.W.2d 1, 2 (Tenn. 1993).

Here, the language of HB2285 is reasonably amenable to but one interpretation and is therefore unambiguous. The plain and clear language of subsection (g), as proposed, states that a person who violates subsection (a) may be required to perform community service "in addition to other penalties provided in this section." This language clearly and unambiguously states that the penalty under subsection (g) is meant to be imposed in addition to, not in lieu of, any other penalties provided in the statute that might be imposed by the court, such as the penalties associated with being found guilty of a Class A misdemeanor. Moreover, the use of the permissive "may," as opposed to the mandatory "shall," indicates that the proposed amendment intends to give a judge the discretion on whether to impose the penalty under this subsection. Steppach v. Thomas, 346 S.W.3d 488, 505-06 (Tenn. Ct. App. 2011). Reading subsection (g) in pari materia with the entire statute, as is required by the basic tenets of statutory construction, further supports this interpretation. See Graham v. Caples, 325 S.W.3d 578, 582 (Tenn. 2010).

Thus, in operation under the proposed bill, a court finding a person guilty of a Class A misdemeanor could impose as the punishment imprisonment or a fine within the statutory ranges, or both, and in addition could require the guilty party to attend drug offender school or perform the community services outlined in the bill, or both.

It is therefore the opinion of this Office that HB2285 would give a judge the discretion to impose the penalties listed therein in addition to, but not in lieu of, other penalties provided in the statute.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

FRANK BORGER-GILLIGAN
Assistant Attorney General

Requested by:
Honorable Julia C. Hurley
State Representative of Tennessee District 32
114 War Memorial Building
Nashville, Tennessee 37243-0157