Criminal Law

2960. Possession of Alcoholic Beverage by Person Under 21

The defendant is charged [in Count ______] with [unlawfully] possessing an alcoholic beverage when under 21 years old.

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant [unlawfully] possessed an alcoholic beverage (in/on) a (street[,]/ [or] highway[,]/ [or] public place[,]/ [or] a place open to the public);


2. At the time, the defendant was under 21 years old.

An alcoholic beverage is a liquid or solid material intended to be consumed that contains one-half of 1 percent or more of alcohol by volume. [An alcoholic beverage includes <insert type[s] of beverage[s] from Bus. & Prof. Code, § 23004, e.g., wine, beer>.]

[Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun.]

[Two or more persons may possess something at the same time.]

[A person does not have to actually hold or touch something to possess it. It is enough if the person has (control over it/ [or] the right to control it), either personally or through another person.]

<Defense: Following Reasonable Adult Instructions>

[The defendant did not unlawfully possess an alcoholic beverage if (he/she) was following, in a timely manner, the reasonable instructions of (his/her) (parent/legal guardian/responsible adult relative/employer/ <insert name or description of person designated by parent or legal guardian>) to deliver [or dispose of] the alcoholic beverage. The People have the burden of proving beyond a reasonable doubt that the defendant was not following such instructions. If the People have not met this burden, you must find the defendant not guilty of this crime.]

Bench Notes

Instructional Duty

The court has a sua sponte duty to give this instruction defining the elements of the crime.

Give the bracketed sentence about calculating age if requested. (Fam. Code, § 6500; In re Harris (1993) 5 Cal.4th 813, 849-850 [21 Cal.Rptr.2d 373, 855 P.2d 391].)

Defenses—Instructional Duty

Business and Professions Code section 25662 allows for the lawful possession of alcohol by a minor if authorized by a responsible adult for a limited purpose. If there is sufficient evidence, the court has a sua sponte duty to instruct on the defense. (See People v. Mower (2002) 28 Cal.4th 457, 478-481 [122 Cal.Rptr.2d 326, 49 P.3d 1067] [discussing affirmative defenses generally and the burden of proof].) Give the bracketed word "unlawfully" in the first sentence and element 1, and the bracketed paragraph on the defense.


Elements. Bus. & Prof. Code, § 25662(a).

Alcoholic Beverage Defined. Bus. & Prof. Code, § 23004.

Authorized Possession Defense. See People v. Fuentes (1990) 224 Cal.App.3d 1041, 1045 [274 Cal.Rptr. 17]; People v. Mower (2002) 28 Cal.4th 457, 478-481 [122 Cal.Rptr.2d 326, 49 P.3d 1067].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000), Crimes Against Public Peace and Welfare, § 291.

(New January 2006)