That's the whole point: you cannot use the car the same way as during the tests, even if you exactly match speed, acceleration, distance, friction, temperature and any other variable. The software that limits emissions is disabled during "normal" operation, ie. driving.
I will attempt to make an analogy that tries to shine light on the angle I'm coming from. When we interview for software engineers, many companies place much of the emphasis on algorithms as opposed to other hard-to-test skills. Now, you have a candidate that aces any algorithm question put in front of them yet completely sucks at software engineering. Did that person commit fraud? It seems, to me, that the test is what is broken.
We all clearly understand the angle you're coming from, but you haven't been able to make the case it isn't fraud. Because it is textbook fraud.
If you think the test is bullshit, then you make that case separately. You don't lie about how you're passing it and then when caught say 'but it's the test's fault!'.
