McGraw

The Department of Motor Vehicles (Department) appeals from an order of the superior court reversing the Department’s order directing the suspension of the driver’s license of David Arthur McGraw (McGraw or respondent) pursuant to Vehicle Code section 13353, subdivision (b), due to his failure to submit to a chemical test for alcohol. The reason given by the trial court for its decision was the failure of the Department to afford to McGraw the choice of whether to submit to the Department oral or written arguments before refusing to adopt the proposed decision of the referee. We will hold the choice of whether to permit oral or written arguments is with the Department and not with the driver of the motor vehicle.

On June 25, 1982, respondent was involved in an accident and was subsequently arrested for drunk driving. After being transported to a hospital for treatment of injuries he received in the accident, respondent was advised by the arresting officer of his choice of chemical tests to determine his blood alcohol level. Because respondent was at a hospital, his choice was between a blood or urine test. In response to the officer’s questions regarding which test…