I'm pretty sure that it's driving without the car being in gear that is, or should be illeagle if any of it is, if driving with the engine off was illeagle hybrids would have some fancy hoops to jump thru, I can turn my engine off, and as I'm coasting up a hill bump start it and run for a few seconds, and the only way to tell is that the oil presure and battery light come on when the engine is off, and they go off again when I start it.
the varrying throttle in my expearince is the o2 sensor, but going thru and doing a tune up might make it go away as well, make sure your EGR valve is working properly too, as I was told by the dealer mecanice that if that is not working right that it can sometimes have the same affect, to check that simply pull the vaccum hose off the EGR valve and plug it with a pencel.
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