SHIKES DEFENDS GUATEMALAN COUNSEL CHARGED WITH DUI

Byline: Peter Hartlaub Daily News Staff Writer

Rafael Salazar's get-out-of-jail-free card didn't work.
        After he hit a trailer truck and spun into a center divider on the Pomona Freeway  and Interstate 215  in April 1997, the Counsel flashed his identification for a CHP officer, expecting diplomatic immunity. Instead he was handcuffed, driven to the station and given a breathalyzer used to detect alcohol on a suspected drunk driver's breath. Later, he was charged with drunk driving just like anybody else.
       Salazar responded by suing just about everyone connected to the case - including a Municipal Court judge. He claims that Article 41 of the Vienna Agreement makes him immune from misdemeanor arrest. He's seeking $1 million from the state, the California highway patrol and the officer who took him in. ``When Barney Fife  arrests a foreign diplomat in Mayberry, the ripple effect spreads to all foreign governments,'' attorney Stephen Shikes said. ``This case opens up a world of harassment for consulates everywhere.''

      Meanwhile, Salazar was promoted by his government to be an ambassador in another country. Salazar's decision to file a lawsuit might seem unusual, given that police say his blood-alcohol level was 2-1/2 times the legal limit. Perhaps even more unbelievable: He may have some legal ground to stand on. From parking tickets to suspicion of drunk driving, laws are set up to protect diplomats like Salazar from arrest. In recent years, however, law enforcement officials have been challenging immunity protection with several successful prosecutions of foreign government officials who thought they were legally  bulletproof. I think it's been tougher for diplomats. The political winds are shifting, ''The police used to turn the other way in these cases. Now I don't think it's in their interest politically.''

International law
By international law, consul generals enjoy an intermediate level of freedom from arrest - Salazar's Identification told officers not to arrest him ``except on a warrant for felony offense.''  In any case, CHP and officials say they can always restrain a diplomat who endangers the public safety. ``We'll put them in a taxicab, call a consulate or do whatever we have to do to stop them from hurting others,'' LAPD Lt. Wallace Graves said. But once the immediate danger is thwarted, Graves said police are instructed to treat the diplomat differently from a U.S. citizen. ``Once we've stopped them from doing things that are dangerous to other people, we can't arrest them per se,'' Graves said. ``If they want to walk off, they can walk off.''

On duty?

        In defending the lawsuit, Deputy District Attorney Richard De La Sota noted Salazar was not booked at the station and was taken home by a CHP officer because his car was wrecked. ``The real issue is whether Mr. Salazar was engaged in the performance of his consular functions while driving on the Pomona Freeway in his own automobile with a blood-alcohol level of 0.20 and slamming into the rear of a tractor-trailer rig,'' De La Sota said.

       A letter from U.S. State Department legal counsel backed De La Sota's assessment, pointing out that Salazar's ``consular immunity'' is dependent on whether or not he is at work. Salazar's attorneys claimed he was en route to his office when the crash occurred and that CHP officers made an illegal arrest.
Municipal Court Judge Conrad Aragon turned down Salazar's motion to dismiss the case in February and set a July 27 trial date. Salazar responded with a lawsuit in federal court, asking for dismissal of the charges and damages to be assessed. The case is pending.

Promotion for Salazar

Lutz says state prosecutors' best chance of convicting a consul or diplomat is to convince a lawbreaker's own government to waive immunity.  .  .  .  Rather than cut a deal in Salazar's case, the Guatemalan government promoted him twice since the incident, and he now is ambassador to Belize, according to consulate officials. Under U.S. law, an ambassador has even more immunity than a consul general.

Shikes acknowledged that some U.S. citizens may not want to believe that a diplomat can claim immunity. But he feels that foreigners won't understand the district attorney's action.  `There's a higher and more important consideration - the relation between the U.S. and the rest of the world,'' Shikes said.