appeared to be drinking ... he was sober enough to know where he was and to recognize who the people around him were” (internal quotation marks omitted)). In Cristobal, we explicitly declined to “stat[e] that whenever a defendant can show that he was given medication, his Miranda waiver was per se ineffective.” 293 F.3d at 142. While medication is certainly different from alcohol in some respects, we see no reason to announce a per se rule that intoxication, without more, is sufficient to render a Miranda waiver ineffective. “Other circuits, in likewise upholding Miranda waivers, have done so despite drug impairment.” Montgomery, 621 F.3d at 572-73 (citing Cristobal, and cases from the Seventh, Eighth and Tenth Circuits); United States v. Burson, 531 F.3d 1254, 1258 (10th Cir.2008) (<HOLDING>). The totality of the circumstances here does
holding that circumstantial evidence may suffice to show that one is a party to an offense holding that trial court committed plain error by not determining the voluntariness of the defendants miranda waiver when the evidence clearly reflected such an issue holding that the mere fact of drug or alcohol use will not suffice to show that a defendants miranda waiver is ineffective but rather the defendant must produce evidence showing that his condition was such that it rose to the level of substantial impairment holding that defending party may establish a right to summary judgment by showing that the plaintiff after an adequate period of discovery has not been able to produce and will not be able to produce evidence sufficient to allow the trier of fact to find the existence of any one of the claimants elements recognizing the right of a defendant to comment upon the failure of the state to produce evidence