¶1concurring and dissenting.
¶2I concur in the portion of the opinion that reverses the conviction for driving on a suspended license. In addition, however, I would reverse the conviction for leaving an unattended motor vehicle on the roadway, and I would dismiss both convictions.
¶3I agree that when the officer arrived on the scene the motor vehicle was unattended on the highway. However, the statute states that “[n]o person shall leave any motor vehicle . . . unattended on . . . any roadway if it constitutes a hazard in the use of the highway.” Code § 46.2-1209. Once Davis exited the automobile and departed, he left the automobile unattended. The offense was then complete.
¶4The evidence did not prove that Davis departed from the disabled vehicle in the presence of the officer. The presence of the automobile, *676standing alone, did not prove that Davis, rather than one of the other occupants of the automobile, left the automobile unattended on the roadway. Thus, the officer’s testimony did not prove that Davis committed the offense in the officer’s presence. See, e.g., Penn v. Commonwealth, 13 Va. App. 399, 412 S.E.2d 189 (1991) (although individual discarded a bottle, the officer could not arrest without a warrant for littering because the officer did not see the individual discard the bottle), aff'd, 244 Va. 218, 420 S.E.2d 713 (1992).
¶5Both convictions should be dismissed because of the improper arrests and prosecution on improper process.